The  Law  of  the 

Motion  Picture  Industry 


A  Lecture  Delivered  by 
GUSTAVUS  A.  ROGERS,  LL.  B] 

(OF  THE  NEW  YORK  BAR) 


At  the  College  of  the  City  of  New  York 
November  28,  1916 


NOTE. 


In  printing  this  lecture,  the  author  wishes 
to  take  this  opportunity  to  express  his  ap- 
preciation of  the  kindliness  and  scholarship 
of  the  Honorable  George  W.  Wickersham, 
former  Attorney  General  of  the  United 
States,  whose  great  abilities  and  sound  legal 
standards  were  always  a  beacon  in  the  first 
and  early  days  of  the  discussion  of  the  law 
of  the  motion  picture  industry. 


The  Law  of  the  Motion  Picture  Industry 
A  LECTURE 

BY 

GUSTAVUS  A.  ROGERS,  LL.  B. 

OF  THE  NEW  YORK  BAR 


Our  justification  for  discussing  the  law  of  the  motion  pic- 
ture industry  is  that  there  has  come  into  the  civilized  world 
in  the  past  ten  years  a  medium  of  expression  as  revolutionary 
and  important  in  its  way  as  the  printing-press,  the  telegraph 
and  the  flying  machine ;  and,  whereas  these  three  inventions 
went  through  years  of  development  and  improvement,  the 
motion  picture  seems  to  have  sprung,  Minerva-like,  full 
born  on  the  public,  with  the  consequence  that  there  is  much 
confusion  as  to  the  rights  of  the  public  and  those  engaged 
in  the  industry;  and  a  general  hurry  and  bustle  among  cer- 
tain active  and  honest  souls  to  put  some  laws  on  the  statute 
books  without  due  consideration  as  to  the  real  necessity  for 
those  laws. 

As  with  Gulliver  when  he  arrived  in  Lilliputia,  the  first 
thought  seems  to  have  been  to  tie  up  the  industry  with  laws, 
a  tendency  which  I  might  say  characterizes  our  day,  and 
which  tends  to  legislation  as  a  substitute  for  thought. 
No  one  regrets  this  more  than  the  clear-seeing  lawyer,  who 
realizes  that  the  attempt  to  cure  gastronomic  ills  by  fiat 
of  government,  while  appealing  to  the  fiery  imagination  of 
the  man  on  the  street,  tends  to  undermine  the  respect  of  the 
community  for  all  laws,  and  what  is  more,  it  doesn't  cure 
the  dyspeptic. 

An  interesting  analogy  might  be  drawn  between  the 
introduction  of  the  motion  picture  in  our  day  and  the  intro- 
duction of  playing-cards  into  Europe  in  the  thirteenth  cen- 
tury. Playing-cards,  as  we  all  know,  were  invented  in  the 
East  and  were  founded  on  the  game  of  chess,  known  as  the 
Four  Kings.  When  they  were  introduced  into  Europe  they 


became  so  popular  with  the  people  that  various  German 
towns  passed  ordinances,  between  the  years  1400  and  1438, 
forbidding  their  use  by  the  people.  In  1440,  however,  a 
concession  was  made,  allowing  the  people  to  use  playing- 
cards  on  holidays.  In  England,  Parliament  passed  a  law 
forbidding  their  use  by  common  people  except  on  holidays. 
In  other  words,  the  fact  that  the  people  had  found  some- 
thing that  amused  them  was  a  sign  that  they  had  been  lured 
away  from  virtue  by  the  devil. 

In  view  of  the  confusion  of  public  mind,  haste  of  legis- 
lative body  and  hurried  decisions  by  the  courts  that  have 
followed  the  rise  of  the  motion  picture  industry,  it  seems 
but  right  that  we  should  take  a  survey  of  what  is  the  law, 
as  it  is  being  applied  to  this  new  industry,  and  what  relation 
that  law  has  to  the  fundamental  laws  and  principles,  without 
which  there  cannot  be  built  any  superstructure  that  would 
seek  to  take  care  of  new  conditions. 

What  is  a  motion  picture?  Professor  Hugo  Munster- 
berg  said:  "The  massive  outer  world  has  lost  its  weight; 
it  has  been  freed  from  place,  time  and  casuality  and  it  has 
been  clothed  in  the  forms  of  our  own  consciousness.  The 
mind  has  triumphed  over  matter  and  the  pictures  reel  on 
with  the  ease  of  musical  tones.  It  is  a  superb  enjoyment 
which  no  other  art  can  furnish  us." 

Coming  at  a  time  when  the  cost  of  most  amusement  was 
high,  the  motion  picture  was  at  first  a  plaything,  but  it  is 
now  accepted  as  one  of  the  large  factors  in  the  history  of  our 
day,  with  educational  and  scientific  possibilities  that  had  not 
been  dreamed  of.  Every  day  at  least  ten  million  people  in 
the  United  States  go  to  make  up  the  largest  audience  and 
the  largest  record  of  audiences  that  the  world  has  ever 
known. 

In  a  previous  lecture,  Judge  Charles  M.  Hough,  an  able 
jurist,  told  you  that  Commercial  Law  is  composed  of  cus- 
toms of  merchants,  grafted  on  the  customary  law  of  agri- 
cultural and  pastoral  people — the  crystallized  rules  of  many 
generations  of  trades — all  of  which  is  finally  accepted  by 
the  courts  as  general  law.  He  told  you,  too,  that  William 


Murray,  Lord  Mansfield,  stated  most  of  this  law,  formu- 
lated a  system  of  jurisprudence  which  was  suited  to  the 
English-speaking  people,  and  by  his  intellectual  force  se- 
cured its  acceptance  approximately  one  hundred  and  fifty 
years  ago. 

But  whereas  the  Commercial  Law  is  the  outgrowth  of 
centuries — we  find  even  the  beginnings  of  this  law  in  the 
Code  of  Hammurabi,  dug  up  in  Babylon,  and  evident  in  the 
customs  that  were  accepted  even  then,  2250  B.  C. — the  law 
we  are  to  discuss  to-night  relates  to  an  industry  that  has 
come  suddenly  on  the  world  within  the  last  ten  years;  but 
however  short  the  time  has  been  for  the  law  of  this  industry 
to  develop,  its  growth  has  been  rapid;  and  while  to-day  the 
law  may  not  be  quite  settled,  it  nevertheless  has  passed  its 
formative  period.  Perhaps — who  knows? — there  may  be 
a  Lord  Mansfield  in  this  audience  who  will  so  shape  the 
law,  and  with  such  understanding,  that  the  controversies 
that  are  agitating  us  to-day  will  be  very  much  things  of  the 
past  in  another  generation. 

Touching  as  the  law  of  this  new  industry  does  so  many 
phases  of  the  general  law,  we  cannot  in  such  a  discussion 
as  we  are  having  to-night  expect  to  do  more  than  bring  out 
the  high  lights,  and  first  it  may  be  necessary  to  go  into  the 
general  subject  of  patents,  which  at  the  very  outset  brought 
into  the  courts  those  engaged  in  the  motion  picture  industry. 

PATENTS. 

The  patent  phase  of  the  new  business  produced  in  the 
first  years  of  its  development  a  number  of  decisions  which 
were  very  important  at  the  time,  but  now  have  practically 
little  interest  except  to  the  student,  because  most  of  those 
patents  have  expired;  in  fact,  the  basic  patent  has  been  de- 
clared invalid  by  the  courts. 

Ask  the  average  person  who  is  the  inventor  of  motion 
pictures  and  the  reply  will  be,  Thomas  A.  Edison.  Mr. 
Edison  himself  would  probably  agree  that  he  is  the  inventor, 
but  the  courts  have  held  otherwise.  His  claim  was  asserted 


under  what  is  known  as  the  "Edison  Film  Patent,"  but  was 
rejected  by  our  courts  as  being  untenable.* 

In  one  of  the  cases,  Judge  Wallace  disposed  of  Mr. 
Edison's  claim  that  he  was  the  inventor  of  the  art  of  taking 
still  objects  and  projecting  them  as  moving  pictures,  or 
objects  in  motion;  for,  after  all,  you  must  understand  that 
"moving"  pictures  do  not  move.  What  is  seen  on  the  screen 
is  an  optical  illusion;  the  eye  is  led  to  believe  that  the  objects 
are  in  motion,  whereas,  in  fact,  it  is  the  camera  and  pro- 
jecting machine  which  make  them  appear  to  move. 

In  order  to  thoroughly  understand  these  decisions,  we  are 
obliged  to  make  reference  to  what  motion  pictures  are  and 
the  appurtenances  for  a  motion  picture  exhibition.  They 
are,  first;  the  camera  with  which  the  pictures  are  taken; 
second,  the  projecting  machine  with  which  the  film  is  pro- 
jected upon  the  screen;  third,  the  screen. 

The  early  stages  of  the  industry,  although  dating  back 
several  years  prior  to  1907,  really  begin  at  that  period  when 
the  demand  for  pictures  in  this  country  first  became  marked. 
The  result  of  this  demand  was  that  there  came  upon  the 
market  the  productions  of  about  ten  American  manufac- 
turers, all  but  one  or  two  of  whom  were  manufacturing 
their  own  product,  and  a  few  who  were  importing  films  from 
abroad.  There  were  at  that  time  a  number  of  outstanding 
patents  upon  parts  of  the  camera,  as  well  as  upon  the  strip 
film,  already  referred  to  as  the  Edison  Film  Patent,  and 
patents  upon  the  component  parts  of  the  projecting  machine. 

The  business  at  that  time  was  conducted  in  defiance  of, 
or  at  least  in  disregard  of,  the  existing  patents.  The  market 
was  comparatively  open  and  free  until  the  Spring  of  1908, 
when  the  manufacturers  divided  into  rival  factions,  one 
known  as  the  Edison  group,  who  sought  protection  under 
the  Edison  Film  Patent  and  patents  upon  the  parts  of  the 
camera ;  the  other,  the  so-called  Biograph  group,  who  sought 
protection  under  patents  upon  the  parts  of  the  projecting 
machine. 


*See  the  decision  of  Mr.  Justice  Wallace  in  Edison  v.  The  American  Mutascope 
Company,  114  Fed.  Rep.  926.  See  also  Edison  v.  American  Mutascope  &  Biograph 
Company,  151  Fed.  Rep.  767,  and  Motion  Picture  Patent  Company  v.  Chicago  Film 
Exchange,  30  Appeal  Cases,  District  of  Columbia,  p.  285. 

8 


FORMATION  OF  COMBINATION. 

The  Edison  group  formed  a  combination  of  manufac- 
turers, and  licenses  were  issued  under  the  so-called  Edison 
Film  Patent,  and  the  Biograph  Company,  with  their  group, 
formed  a  combination  under  the  projecting  machine  patents. 
They  immediately  started  litigation  under  the  patents,  each 
side  seeking  to  restrain  the  other.  The  Edison  people  were 
asserting  the  invalidity  of  the  projecting  machine  patents 
and  belittling  the  patents  on  the  machine,  and  the  Biograph 
group  were  likewise  belittling  the  Edison  patents. 

This  continued  until  about  the  early  Fall  of  1908>  when 
the  factions  came  together,  and  all  patents  were  brought 
into  a  holding  company,  called  the  Motion  Picture  Patents 
Company,  and  a  new  system  was  devised,  which  was  there- 
after condemned  by  the  Federal  Court  at  the  suit  of  the 
Government,  as  being  a  combination  in  restraint  of  trade 
under  the  Federal  Anti-Monopoly  Act* 

After  all  the  patents  had  been  assigned  to  the  Motion 
Picture  Patents  Company,  a  complicated  system  of  licensing 
under  the  patents  was  devised,  with  license  agreements  to 
the  manufacturers,  who  were  known  as  the  "Licensed  Manu- 
facturers." These  manufacturers  did  business  with  the 
rental  companies,  or  middlemen,  who  were  obliged  to  agree 
that  they  could  deal  only  wtih  theatres  or  exhibitors  who 
recognized  the  validity  of  the  patents,  and  who  would  bind 
themselves  to  use  exclusively  the  products  of  the  Licensed 
Manufacturers. 

With  the  Eastman  Kodak  Company  an  agreement  was 
made  that  the  entire  output  of  the  raw  stock,  or  base  film, 
upon  which  the  pictures  were  printed  should  be  supplied  by 
the  said  Eastman  Kodak  Company  only  to  the  manufac- 
turers in  the  combination,  excepting  about  three  per  cent,  of 
the  output,  which  the  Eastman  Company  was  permitted  to 
distribute  for  scientific,  educational  and  governmental  pur- 
poses. With  the  market  in  this  condition,  it  may  readily  be 
understood  that  competition  was  completely  shut  off. 


*See  United  States  v.  Motion  Picture  Patents  Co.,  opinion  of  Dickinson,  J.,  Dis- 
trict Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania,  225  Fed. 
Rep.,  p.  800. 


COMBINATION  DECLARED  ILLEGAL. 

The  final  step  in  the  combination,  as  found  by  the  courts, 
was  that  after  the  manufacturers  had  succeeded  in  gather- 
ing in  the  rental  companies  and  tying  up  the  exhibitors,  they 
formed  a  sole  selling  agency  of  the  Licensed  Manufacturers, 
known  as  the  General  Film  Company.  This  company  pro- 
ceeded to,  and  did,  successfully,  absorb  or  put  out  of  business 
all  of  the  then  existing  rental  companies,  with  the  exception 
of  Mr.  William  Fox's  Company,  whose  resistance  to  the 
exactions  and  demands  of  the  Motion  Picture  Patents  Com- 
pany and  Licensed  Manufacturers  led  to  the  suit  under  the 
Federal  Anti-Trust  Law  by  the  Government  for  the  disso- 
lution of  the  combination.  This  suit  resulted  in  the  decision 
of  Mr.  Justice  Dickinson,  granting  judgment  in  favor  of  the 
United  States  Government,  already  referred  to. 

To  those  who  are  interested  in  this  subject,  a  reference 
will  be  found  to  the  activities  of  the  General  Film  Company 
in  the  report  of  Judge  Clayton,  as  Chairman  of  the  Com- 
mittee on  Judiciary  of  the  United  States  Senate,  in  vol.  2, 
p.  1,964,  of  the  report  of  the  hearings  before  that  Com- 
mittee in  the  Sixty-third  Congress,  second  session,  where  he, 
speaking  for  the  Committee,  said: 

"Where  the  concern  making  these  contracts  (the  'tying  contract')  is 
already  great  and  powerful,  such  as  the  United  Shoe  Machinery  Company, 
the  American  Tobacco  Company  and  the  General  Film  Company,  an  exclu- 
sive or  tying  contract,  made  with  local  dealers,  becomes  one  of  the  greatest 
agencies  and  instrumentalities  of  monopoly  ever  devised  by  the  brain  of 
man.  It  completely  shuts  out  competitors,  not  only  from  trade  in  which 
they  are  already  engaged,  but  from  the  opportunities  to  build  up  trade  in 
any  community  where  these  great  and  powerful  combinations  are  operating 
under  this  system  of  practice.  By  this  method  and  practice  the  Shoe  Ma- 
chinery Company  has  built  up  a  monopoly  that  owns  and  controls 
the  entire  output  of  machinery  now  being  used  by  all  great  shoe 
manufacturing  houses  of  the  United  States.  No  independent  manufacturer 
of  shoe  machines  has  the  slightest  opportunity  to  build  up  any  considerable 
trade  in  this  country  while  this  condition  obtains.  If  a  manufacturer  who 
has  shoe  machines  of  the  Shoe  Machinery  Company  were  to  furnish  and 
place  a  machine  manufactured  by  any  independent  company  in  his  estab- 
lishment, the  Shoe  Machinery  Company  can,  under  its  contracts,  withdraw 
all  of  their  machinery  from  the  establishment  of  the  shoe  manufacturer  and 
thereby  wreck  the  business  of  the  manufacturer. 

"The  General  Film  Company,  by  the  same  method  practiced  by  the  Shoe 
Machinery  Company,  under  the  lease  system,  has  practically  destroyed  all 
competition  and  acquired  a  virtual  monopoly  of  all  films  manufactured  and 
sold  in  the  United  States.  When  we  consider  the  contracts  of  sale  made 
under  this  system,  the  result  to  the  consumer,  the  general  public  and  the  local 
dealers  and  his  business,  it  is  even  worse  than  under  the  lease  system." 

10 


As  a  result  of  this  report,  several  provisions  were  in- 
serted in  the  Clayton  Law,  which  amended  the  Sherman 
Anti-Monopoly  Law,  providing  as  follows: 

"Sec.  2.  That  it  shall  be  unlawful  for  any  person  engaged  in  com- 
merce, in  the  course  of  such  commerce,  either  directly  or  indirectly  to  dis- 
criminate in  price  between  different  purchasers  of  commodities,  which  com- 
modities are  sold  for  use,  consumption  or  resale  within  the  United  States  or 
any  territory  thereof,  or  the  District  of  Columbia,  or  any  insular  possessions, 
or  other  place  under  the  jurisdiction  of  the  United  States,  where  the  effect 
of  such  discrimination  may  be  to  substantially  lessen  competition  or  tend  to 
create  a  monopoly  in  any  line  of  commerce ;  Provided,  That  nothing  herein 
contained  shall  prevent  discrimination  in  price  between  purchasers  of  com- 
modities on  account  of  differences  in  the  grade,  quality  or  quantity  of  any 
commodity  sold,  or  that  makes  only  due  consideration  for  difference  in  the 
cost  of  selling  or  transporting,  or  discrimination  in  price  in  the  same  or  dif- 
ferent communities,  made  in  good  faith  to  meet  competition ;  And  provided 
further,  That  nothing  herein  contained  shall  prevent  persons  engaged  in 
selling  goods,  wares  or  merchandise  in  commerce  from  selecting  their  own 
customers  in  bona  fide  transactions  and  not  in  restraint  of  trade. 

"Sec.  2.  That  it  shall  be  unlawful  for  any  person  engaged  in  com- 
merce, in  the  course  of  such  commerce,  to  lease  or  make  a  sale  or  contract 
for  sale  of  goods,  wares,  merchandise,  machinery,  supplies  or  other  com- 
modities, whether  patented  or  unpatented,  for  use,  consumption  or  resale 
within  the  United  States  or  any  territory  thereof,  of  the  District  of  Columbia, 
or  any  insular  possession  or  other  place  under  the  jurisdiction  of  the  United 
States,  or  fix  a  price  charged  therefor,  or  discount  from,  or  rebate  upon, 
such  price,  on  the  condition,  agreement  or  understanding  that  the  lessee  or 
purchaser  thereof  shall  not  use  or  deal  in  the  goods,  wares,  merchandise, 
machinery,  supplies  or  other  commodities  of  a  competitor,  or  competitors  of 
the  lessor  or  sellor,  where  the  effect  of  such  lease,  sale  or  contract  for  sale, 
or  such  condition,  agreement  or  understanding  may  be  to  substantially  lessen 
competition  or  tend  to  create  a  monopoly  in  any  line  of  commerce." 

This  enactment  was  the  result  of  a  hearing  devoted  by 
the  Judiciary  Committee  of  the  Senate  to  the  subject  of 
motion  pictures,  and  for  a  full  discussion  reference  may  be 
made  to  the  address  of  your  lecturer  before  that  Committee, 
which  will  be  found  in  the  volume  containing  hearings  be- 
fore the  sub-committees  of  the  Committee  of  the  Judiciary 
of  the  United  States  during  the  Sixty-first  and  Sixty-second 
Congress,  vol.  1,  pp.  470  to  502.* 


*See  also  Mr.  Rogers'  letter  to  President  Wilson  of  July  27,  1914,  incorporated 
in  the  speech  of  Senator  Crawford,  reported  in  the  Congressional  Record  of  July  30, 
1914,  at  p.  14,145. 

11 


The  result  of  the  filing  of  the  petition  by  the  Govern- 
ment in  the  anti-trust  suit,  and  particularly  since  the  decision 
of  the  court,  announced  in  November,  1915,  has  been  that 
the  market  was  opened  and  competition  was  restored,  so 
that  now  it  may  be  said  that  the  opportunity  for  competition 
is  fairly  free. 

This  result,  however,  was  not  accomplished  until  there 
had  been  a  very  interesting  clash  of  judicial  opinion  on  the 
question  of  the  right  of  individuals,  working  in  combination, 
to  refuse  to  continue  trade  relations  with  another  individual 
in  furtherance  of  a  conspiracy  to  monopolize  trade. 

Professor  Charles  T.  Terry,  in  a  lecture  before  this 
College,  called  your  attention  to  the  fact  that  the  law  would 
not  compel  a  man  to  deal  with  another  in  contractual  form, 
whether  his  refusal  to  deal  with  the  other  in  the  absence  of 
contractual  rights  was  for  any  cause  or  no  cause. 

When  this  question  came  before  Mr.  Justice  Learned 
Hand,*  whose  legal  acumen  and  ability  is  acknowledged,  he 
said  in  part: 

"I  am  by  no  means  willing  to  agree  that  if  ten  manufacturers  agree 
together  to  monopolize  the  function  of  middlemen,  and  in  pursuance  of  that 
agreement  they  discontinue  selling  to  existing  middlemen  and  so  ruin  them, 
the  middlemen  have  no  relief.  It  is  very  well  to  say  that  each  manufacturer 
may  refuse  to  sell  to  whom  he  chooses,  and  so  he  may,  but  his  right  not  to 
sell  is  not  necessarily  so  absolute  that  he  can  use  it  as  a  means  of  effectu- 
ating an  illegal  purpose." 

"That  an  act  is  one  of  a  series  forbidden  as  a  whole,  is  an  incident  often 
very  relevant  legally.  If  it  were  not  we  should  never  have  the  element 
of  intent  in  crime  or  torts." 

The  contra  was  held  by  the  Circuit  Court  of  Appeals, 
reversing  Mr.  Justice  Hand,  the  opinion  being  written  by 
Mr.  Justice  Lacombe,  as  follows : 

"It  is  asserted  by  defendant-appellant  that  at  no  time  prior  to  the  insti- 
tution of  this  suit  was  there  any  contract  between  it  and  the  complainant, 
whereby  it  had  agreed  to  continue  to  supply  complainant  with  films  of  its 
manufacture  for  any  period  of  time.  We  find  nothing  in  the  record  to  indi- 
cate that  there  was  any  such  contract,  and  we  do  not  understand  that  com- 
plainant contends  that  there  was. 


•The  Greater  New  York  Film  Rental  Company  v.  The  Biograph  Company,  et  al.. 
decided  July  12,  1912. 

12 


"This  being  so,  we  are  satisfied  that  if  all  the  facts  averred  in  the  bill 
were  proved  at  final  hearing,  and  all  the  inferences  of  fact  which  com- 
plainant contends  for  were  drawn  from  the  facts  thus  proved,  and  that  if 
upon  some  theory  or  other  of  those  suggested  it  were  held  by  the  trial  court 
that  complainant  had  suffered  wrong  at  the  hands  of  those  whom  it  alleges 
conspired  to  injure  its  business,  and  that  for  such  wrong  it  was  entitled  to 
some  relief  against  the  conspirators,  or  some  of  them,  it  could  not  obtain 
specific  relief  of  the  sort  accorded  by  this  preliminary  injunction,  viz.,  a 
decree  compelling  the  Biograph  Company  to  sell  films  to  complainant  against 
that  company's  wish."  (203  Fed.  Rep.,  p.  40.) 

With  the  highest  respect  for  the  Circuit  Court  of  Ap- 
peals in  this  District  and  the  Judges  who  compose  it,  I  be- 
lieve that  the  view  of  Judge  Hand  is  the  correct  one.  The 
view  of  Mr.  Justice  Lacombe  is  that  with  the  exception  of 
a  public  service  corporation,  or  a  company  engaged  in  public 
utilities,  one  cannot  be  compelled  to  have  or  maintain  trade 
relations  with  another.  To  subscribe  to  this  view  would,  in 
short,  be  saying  that  a  conspiracy  can  be  successfully  carried 
on,  using  so-called  lawful  means,  i.  e.,  the  right  to  refuse 
to  contract,  for  the  accomplishment  of  an  unlawful  end  or 
purpose,  the  ruining  of  a  competitor  by  the  persons  so  com- 
bining to  refuse  to  deal  with  him. 

This  theory  does  violence  to  the  generally  accepted  doc- 
trine that  a  rightful  means  cannot  be  used  for  the  purpose  of 
accomplishing  a  wrongful  end.  There  is  abundant  authority 
in  the  books  to  sustain  this  proposition.  Those  who  are 
interested  in  the  further  pursuit  of  this  inquiry  will  find  an 
expression  of  it  in  the  opinion  of  Mr.  Justice  Dickinson,  al- 
ready referred  to  (203  Fed.  Rep.,  p.  39),  in  which  he  says 
in  part : 

"The  conspiracy  under  this  statute,  i.  e.,  the  Federal  Anti-Monopoly 
Act,  as  at  common  law,  may  have  as  an  element  the  seeking  of  an  unlawful 
end  or  the  employment  of  unlawful  means." 

It  was  also  decided  in  the  same  case  that  the  fact  that 
the  Patents  Company,  or  the  manufacturers,  were  the  own- 
ers of  patents  upon  the  camera,  or  parts  thereof,  upon  the 
projecting  machine,  or  parts  thereof,  or  in  fact  upon  the 
film  itself,  was  no  defense  to  an  unlawful  conspiracy  or  a 
monopoly  creating  a  restraint  of  trade.  Judge  Dickinson 

13 


stated  that  the  ownership  of  patents  cannot  be  accepted  as 
a  defense  to  the  charge  of  unlawful  combination.* 

The  defendants,  failing  to  succeed  in  their  contention  in 
the  Government  litigation,  that  their  patents,  or  alleged 
patents,  afforded  them  justification  for  what  would  other- 
wise be  unlawful,  made  the  novel  suggestion  that  motion 
pictures  as  such  were  not  articles  in  common  use  and  that 
they  were  not  the  subject  of  interstate  commerce. 

The  manufacturers  asserted  that  "photo-plays"  were 
artistic  productions  "emanating  from  the  brain  of  the 
author,"  and  the  "artistic  development"  of  the  story  by 
living  actors.  Therefore,  they  argued,  it  was  not  a  motion 
picture  film,  but  in  reality  the  artistic  creation,  imagination 
and  development  of  an  author's  brain,  supplemented  by  the 
acting  ability  of  the  principals  engaged  in  the  performance 
that  was  the  subject  matter  in  dispute. 

To  understand  the  importance  of  this  we  need  only  have 
reference  to  the  fact  that  the  Federal  statue  was  inended  to 
deal  with  articles  sent  into  the  channels  of  interstate  com- 
merce, and  that  the  Anti-Monopoly  or  Trust  Act  of  the  State 
of  New  York,  familiarly  called  the  Donnelly  Anti-Trust 
Law,  (the  author  of  which  is  Mr.  Justice  Donnelly,  of  our 
Supreme  Court) ,  which  act  is  now  known  as  Section  340  of 
the  General  Business  Law,  formerly  Chapter  690  of  the 
Laws  of  1899,  is  intended  to  cover  articles  in  common  use 
dealt  in  intrastate  commerce. 

The  claim  made  by  these  defendants  found  its  original 
justification  in  the  decision  of  Mr.  Justice  Rosalsky,  of  the 


•See  also  Bement  v.  National  Harrow  Co.,  186  U.  S.,  70. 

Rubber  Tire  Wheel  Co.   v.   Milwaukee   Rubber  Works   Co.,   154   Fed.    Rep.,   358. 

Indiana  Manufacturing  Co.  v.  J.  I.  Case  Machine  Co.,  154  Fed.  Rep.,  365. 

Goshen  Rubber  Works  v.  Single  Tube  Auto  &  Bicycle  Tire  Co.,  166  Fed.  Rep.,  431. 

Bauer  v.  O'Donnell,  229  U.   S.,  1. 

United  Shoe  Machinery  Co.  v.  La  Chatelle,  212  Mass.,  467,  pp.  480  and  481. 

Henry  v.  Dick  Co.,  224  U.  S.,  1,  dissenting  opinion  of  Ch.  j.  White. 

Virtue  v.   Creamery  Package  Mfg.   Co.   and  ano.,  227  U.   S..  6. 

Blount  Manufacturing  Co.  v.  Yale  &  Towne  Manufacturing  Co.,  166  Fed.  Rep.,  555. 

Waltham  Watch  Co.  v.  Keene,  202  Fed.   Rep..  225. 

U.  S.  v.  New  Departure  Manufacturing  Co.,  204  Fed.   Rep.,  107,  114. 

International  Harvester  Co.  v.  Missouri.  234  U.   S.,  199,  209. 

U.  S.  v.  International  Harvester  Co.,  214  Fed.   Rep.,  987. 

Broomer  v.  McQuenan,  14  How.  (U.  S.),  539,  548. 

Patterson  v.  Kentucky,  97  U.  S.,  501. 

Webber  v.   Virginia,  103  U.  S.,  344,  347. 

National  Harrow  Co.  v.   Hench,  83  Fed.   Rep..  36. 

National  Harrow  Co.  v.   Hench,  84  Fed.   Rep.,  226. 

National  Harrow  Co.  v.  Hench,  76  Fed.  Rep.,  667,  669. 

14 


Court  of  General  Sessions  in  a  proceeding  by  The  People 
directed  against  the  so-called  "Theatrical  Trust,"  for  vio- 
lating our  State  Anti-Trust  Law ;  and  in  a  very  complete  and 
thorough  opinion*  Judge  Rosalsky  disposed  of  the  con- 
tention by  holding  that  plays  and  dramas  were  not,  under 
our  State  statute,  articles  or  commodities  of  common  use, 
and  that,  however  oppressive,  the  acts  of  the  alleged  com- 
bination did  not  come  within  the  definition  of  our  law,  and 
that,  therefore,  the  defendants  had  not  violated  the  statute. 

This  was  followed  by  the  decision  of  Mr.  Justice  Pendle- 
ton,  which  was  affirmed  by  our  Appellate  Division,  in  an 
action  against  Mr.  Hammerstein  by  the  Directors  of  the 
Metropolitan  Opera  House, t  under  a  contract  he  had 
made  with  them,  in  which  he  asserted  that  the  acts  of  the 
managers  of  the  Metropolitan  Opera  House  were  a  viola- 
tion of  the  Federal  Anti-Trust  Law,  a  claim  which  Mr.  Jus- 
tice Pendleton  denied,  saying,  with  respect  to  the  opera,  that 
although  the  troupe  would  move  from  one  state  to  another, 
carrying  scenery  and  stage  appurtenances,  that  they  were 
not  engaged  in  interstate  commerce.  But,  whatever  the 
situation  may  be  with  respect  to  theatricals,  or  to  the  opera, 
the  claim  made  by  the  defendants  was  rejected  by  Judge 
Dickinson.  In  his  opinion  he  entirely  ignored  the  claim. 
But  the  contention,  if  at  all  arguable,  was  effectually  dis- 
posed of  in  the  illuminating  brief  submitted  by  Mr.  Edwin 
P.  Grosvenor,  Assistant  United  States  Attorney  General. 

In  this  connection  we  may  briefly  refer  to  a  case  before 
Judge  Hough,  of  our  Federal  Court  in  this  District — always 
a  reliable  authority — in  which,  in  determining  the  relation 
of  a  photo-play  to  the  drama,  it  was  held  in  Kalem  Company 
v.  Harper  Brothers,  222  U.  S.,  55,  that: 

"An  exhibition  of  a  series  of  photographs,  of  persons  and  things  ar- 
ranged on  films  as  moving  pictures,  and  so  depicting  the  principal  scenes 
of  an  author's  work  as  to  tell  the  story,  is  a  dramatization  of  such  work, 
and  the  person  producing  such  films  and  offering  them  for  sale,  or  exhibi- 
tion, even  if  not  himself  exhibiting  them,  infringes  the  copyright  of  the 
author.":): 


*People  v.   Klaw,  55  Misc.   Rep.,   p.  75. 
t!62  A.  D.,  691. 

JRevised  Stat.,  Sec.  4,952,  as  amended  by  Act  of  March  3,  1891,   Chap.  565;  26  Stat., 
Sec.,  1,106. 

15 


The  court  ruled  that  the  copyright  upon  the  late  General 
Lou  Wallace's  book,  "Ben  Hur,"  was  infringed  by  portray- 
ing the  story  upon  the  motion  picture  screen.  This  was  the 
first  case  that  came  into  the  United  States  Supreme  Court 
upon  this  proposition.  The  court  in  disposing  of  the  case 
said:* 

"It  is  said  that  pictures  of  scenes  in  a  novel  may  be  made  and  exhibited 
without  infringing  the  copyright  and  that  they  may  be  copyrighted  them- 
selves *  *  *  *.  Whether  this  concession  is  correct  or  not,  in  view  of  the 
fact  that  they  are  photographs  and  a  lawful  dramatization  of  the  novel, 
we  need  not  decide.  We  will  assume  that  it  is.  But  it  does  not  follow  that 
the  use  of  motion  does  not  infringe  the  author's  rights.  The  most  innocent 
objects,  such  as  the  mirror  *  *  *  *,  may  be  used  for  unlawful  purposes,  and  if, 
as  we  have  tried  to  show,  moving  pictures  may  be  used  for  dramatizing  the 
novel,  when  a  photograph  is  used  in  that  way  they  are  used  to  infringe  a 
right  which  the  statute  reserves." 

What  the  court  had  reference  to  with  respect  to  the  mir- 
ror illustration  was  its  statement  at  Page  61  of  the  same 
case.  The  court  said : 

"But  if  a  pantomime  of  Ben  Hur  would  be  a  dramatization  of  Ben 
Hur,  it  would  be  none  the  less  so  if  it  was  reflected  by  mirrors  and  not  by 
direct  vision  of  the  pictures,  as  sometimes  has  been  done  in  order  to  produce 
ghostly  or  inexplicable  effects.  The  essence  of  the  matter  *  *  *  *  is  not 
the  mechanical  mechanism  employed,  but  that  we  see  the  event,  or  story, 
lived.  The  moving  pictures  are  only  less  vivid  than  reflections  from  a  mir- 
ror. With  the  former  as  with  the  latter,  our  visual  impression — what  we 
see — is  caused  by  the  real  pantomime  or  reel  men  through  the  medium  of 
mechanical  forces,  and  that  the  machinery  is  different  and  more  complex. 
How  it  would  be  if  the  illusion  of  men  were  produced  from  paintings  instead 
of  from  photographs  of  the  real  things,  may  be  left  open  until  the  question 
shall  arise." 

It  may  therefore  seem  that  the  question  has  not  been 
definitely  determined  as  to  whether  a  photo-play  is  really  "a 
commodity"  or  whether  as  such  it  comes  under  the  jurisdic- 
tion of  the  Federal  Anti-Monopoly  Law.  I  am,  however, 
of  the  opinion  that  whenever  it  will  become  important  to 
effectually  dispose  of  the  question,  that  it  will  be  found  that 
there  is  no  difference  between  the  photo-play  and  the  cellu- 
loid record  which  is  used  upon  the  phonograph,  or  the  pic- 
ture postal-card.  For,  after  all,  what  is  sent  in  commerce 
is  a  strip,  or  strips,  of  film,  contained  in  rolls  of  approxi- 
mately a  thousand  feet  each.  On  these  are  still  photographs 
that  are  commercially  useful  when  put  into  a  projecting 
machine  and  ground  out  to  portray  the  story  on  the  screen, 


•Page  62  (222  U.  S.) 

16 


in  the  same  manner  as  the  phonograph  record  is  put  upon 
the  machine  for  the  purpose  of  reproducing  the  musical 
sounds  or  matter  contained  on  the  record. 

Or,  perhaps,  using  the  analogy  of  a  book  or  novel.  What 
is  sent  in  commerce  is  really  not  the  author's  imagination, 
or  the  result  of  his  brain  work,  but  a  number  of  pages 
bound  together  for  the  purpose  of  commercial  sale  of  an 
article  of  commerce ;  to  wit,  a  book,  and  upon  this  proposi- 
tion the  courts  have  already  held  that  a  book,  or  set  of 
books,  even  though  copyrighted,  may  be  the  subject  of  a 
monopoly,  or  combination,  in  restraint  of  trade,  and  that 
it  is  no  answer  to  the  prosecution  under  the  Anti-Monopoly 
Law  to  say  that  books  are  copyrighted.* 

Much  of  what  here  has  been  said  is  important  only  as  giv- 
ing a  brief  historical  review  of  the  industry.  It  relates 
largely  to  the  patent  phases  of  the  situation  and  the  rights 
asserted  under  the  patents.  We  will  refer  now  to  another 
situation. 

RESTRICTION  OF  USE  OF  FILM  ILLEGAL. 

There  is  now  pending  and  undetermined  in  the  Supreme 
Court  of  the  United  States  an  action  entitled  "Motion  Pic- 
ture Patents  Company,  petitioner,  v.  The  Universal  Film 
Manufacturing  Company,  and  others,  defendants,"  for  a 
review  of  a  decision  of  the  United  States  Circuit  Court  of 
Appeals  for  the  Second  Circuit,  reported  in  235  Fed.  Rep., 
p.  398,  decided  June  15,  1916,  which  affirmed  the  decision  of 
Judge  Hough  in  the  same  case,  dismissing  a  bill  in  equity 
filed  by  the  Patents  Company,  who  had  claimed  that  there 
was  an  infringement  of  the  patent  on  a  part  of  the  project- 
ing machine  in  using  thereon  motion  picture  film  other  than 
that  designated  by  the  patentee. 

The  Patents  Company,  in  taking  over  a  patent  known 
as  the  Latham  Loop  Patent,  had  agreed  that  any  projecting 
machine  containing  the  Loop  Patent  was  to  be  sold  under  an 
agreement  that  the  purchaser  of  the  machine  would  only  use 
it  to  show  picture  film  designated  as  Reissue  Patent  No. 


*See  Straus  v.  American  Publishers  Association  231  U.  S.,  222,  reversing  the  same 
case  in  our  Court  of  Appeals,  193  N.  Y.,  496. 

17 


12,192;  that  is,  the  Edison  Film  Patent.  The  petitioner 
asserted  that  the  owner  of  the  machine  had  exhibited  on  same 
film  other  than  that  designated  by  the  Patents  Company. 
This  condition  was  held  to  be  violative  of  the  Federal  Anti- 
Trust  Statute  and  therefore  unenforcible,  the  court  refus- 
ing to  follow  the  opinion  in  the  so-called  "Mimeograph 
Case"  of  Dick  v.  Henry,  224  U.  S.,  1,  and  asserting  that 
under  the  doctrine  of  Bauer  v.  O'Donnell,  229  U.  S.,  1  (The 
Sanatogen  Case),  the  manufacturer  of  the  machine  could 
not  control  the  use  of  the  machine  after  a  sale  there- 
of, any  more  than  the  owner  of  a  patented  article 
could  fix  the  price  thereon  after  he  had  licensed  the  manu- 
facturer thereof  to  make  and  sell  it  and  put  the  article  into 
commerce.* 

In  the  original  opinion  of  the  Circuit  Court  of  Appeals, 
Mr.  Justice  Augustus  M.  Hand  discussed  the  decision  re- 
lating to  the  phonograph  and  Victor  Talking  Machinef 
which  is  now  upon  appeal  to  the  United  States  Supreme 
Court. 

If  the  Supreme  Court  of  the  United  States  should  sus- 
tain the  decision  of  our  Circuit  Court  of  Appeals,  it  will 
be  the  settled  law  that  owners  of  patents  upon  parts  of  the 
projecting  machine  cannot  designate  what  film  may  or  may 
not  be  used  upon  the  projecting  machine,  and  that  the  pur- 
chaser thereof,  having  bought  and  paid  for  the  machine, 
may  use  upon  it  such  film  as  he  may  see  fit  to  use. 

Apropos  of  the  patent  phase  of  the  question,  a  point 
was  argued  on  behalf  of  the  United  States  in  the  Govern- 
ment suit,  to  the  effect  that  while  the  negative  of  the  film 
may  or  may  not  be  subject  to  a  patent,  the  positive  print, 
that  which  is  commercially  used,  is  not  covered  by  the  patent. 
The  argument  to  support  this  was  based  on  the  claims  made 
in  the  patent.  Judge  Wallace,  in  his  opinion  already  re- 
ferred to,  said: 

"The  patent  in  suit  pertains  merely  to  that  branch  of  the  art  which 
consists  of  the  production  of  suitable  negatives." 


See  the  decision  of  the  Circuit  Court  of  Appeals  in  the  same  case  on  a  petition 
for  rehearing,  which  was  decided  on  August  4,  1916,  and  reported  in  235  Fed.  Rep., 
p.  401. 

tSee  Victor  Talking  Machine  Company  v.  Strauss,  230  Fed.  Rep.,  449. 

18 


And  later,  in  the  same  opinion,  he  said: 

"He  (Mr.  Edison)  was  not  the  first  inventor  of  apparatus  capable  of 
producing  suitable  negatives." 

At  no  place  in  the  patent  claims,  said  the  counsel  for  the 
Government,  is  there  any  reference  to  the  positive  print. 
The  description  is  only  of  the  negative  film.  Hence 
he  argued  that  there  was  a  similarity  between  the  production 
of  the  positive  films  from  the  print  made  from  the  negative 
and  the  use  of  the  so-called  "arrot"  dredger  used  in  the  man- 
ufacture of  enamel-ware,  which  was  the  subject  of  investi- 
gation by  the  United  States  Supreme  Court  in  the  Bathtub 
Trust  suit.  Concerning  this  Mr.  Justice  Dickinson  said  in 
his  opinion: 

"As  a  conclusion  to  the  whole  discussion,  we  deem  the  bath-tub  case  to  be 
decisive  of  the  principle  contended  for  by  the  United  States  *  *  *  *.  We 
would  feel  constrained,  on  the  authority  of  this  case  alone  to  find  that  the 
agreements  and  acts  of  the  defendants  in  the  present  case  went  far  beyond 
what  was  necessary  to  protect  the  use  of  the  patents.  *  *  *" 

In  this  discussion  of  monopoly,  patents  and  copyright,  we 
are  in  a  legal  way  establishing  our  industry,  or  in  other 
words,  showing  that  it  is  entitled  to  be  treated  equally  with 
other  industries.  Through  these  decisions  we  know  now 
that  the  industry  has  the  same  rights  as  other  industries,  and 
despite  its  more  or  less  vagabondish  beginnings,  money  in- 
vested in  it,  time  devoted  to  it  and  the  persons  engaged  in 
it,  are  entitled  to  the  same  protection  as  those  engaged  in 
other  industries. 

PREJUDICE   AGAINST  MOTION  PICTURE 
EXHIBITIONS. 

For,  and  this  is  a  point  that  in  discussing  the  new  law, 
a  law  for  this  new  industry,  we  are  very  apt  to  forget :  That 
the  moving  picture  industry  does  not  come  into  court  in  the 
beginning  entirely  free  of  that  historical  prejudice  that  all 
Anglo-Saxon  law  has  had  for  generations  regarding  any- 
thing pertaining  to  the  theatre. 

The  Anglo-Saxon  law  was  derived  from  the  Roman  law, 
and  the  Romans,  under  the  Greek  influence,  where  the  actor 
was  a  person  of  distinction,  regarded  the  theatre  as  their 
noblest  institution.  Yet  the  Anglo-Saxons  wrote  into  their 
statutes  this  provision,  passed  by  the  House  of  Parliament 
in  1597: 

19 


"All  persons  that  be,  or  offer  themselves  to  be  proctors,  patent  gatherers, 
or  collectors  for  gaols,  prisons,  or  hospitals,  or  fencers,  bearwards,  common 
players  of  interludes,  or  minstrels  wandering  abroad  (other  than  players 
of  interludes  belonging  to  any  baron  of  this  realm,  or  any  other  person  of 
greater  degree,  to  be  authorized  to  play  under  the  hand  and  seal  of  such 
baron  or  personage),  all  jugglers,  tinkers,  pedlars  and  petty  chapmen  wan- 
dering abroad,  etc.,  shall  be  adjudged  and  deemed  rogues,  vagabonds  and 
sturdy  beggars  and  punished  as  such." 

Strange  as  it  may  seem,  that  law  is  still  on  the  statute 
books  of  England,  and  while  it  is  no  longer  operative,  the 
feeling  that  the  actor's  was  not  a  regular  business  did  not 
disappear  in  England  until  a  great  innovation  was  under- 
taken, not  through  the  passing  of  any  statute  or  act  of  Par- 
liament, but  through  the  knighting  of  an  actor,  Henry 
Irving. 

It  is  prejudice  such  as  this  against  the  actor  showing  it- 
self in  everything  connected  with  the  theatre,  that  goes 
sometimes  to  confuse  those  who  have  not  fully  grasped  the 
fundamental  principles  of  law,  and  who  have  not  felt  to  the 
full  what  Walter  Pater  calls  "the  aesthetic  charm  of  clear 
thought."  It  was  nothing  more  than  prejudice  that  for 
years  blocked  the  Workmen's  Compensation  Act;  it  was 
prejudice  that  declared  you  could  not  regulate  the  hours  of 
labor,  and  recently  we  have  seen  a  "revolutionary"  consti- 
tutional amendment  adopted,  after  a  hundred  years  acces- 
sion to  the  Federalist  prejudice  against  popular  election  of 
Senators,  on  the  ground  that  the  common  people  should  not 
be  trusted  too  much  with  a  voice  in  their  government. 

Our  new  industry  is  now  properly  open  to  all  who  have 
the  money  to  invest,  with  this  difference :  That  here  again 
the  old-time  prejudice  is  found,  born  of  the  primitive  condi- 
tions and  the  religious  prejudice  that  attended  the  first  years 
and  the  incubating  period  of  the  modern  theatre  in  England. 
As  in  every  industry  where  the  profits  are  apparently  large 
and  the  opportunity  for  unfair  dealing  is  lucrative,  the  un- 
scrupulous endeavored  to  assume  unto  themselves  the  profits 
which  justly  belonged  to  another.  This  brings  us  to  a  con- 
sideration of  the  subject  of  unfair  competition. 

UNFAIR  COMPETITION. 

Under  this  may  be  included  the  violation  of  an  author's 
or  producer's  copyright,  to  which  some  reference  has  al- 

20 


ready  been  made,  or  the  simulating  or  pirating  of  a  popular 
photo-play,  or  scenario,  to  which  I  have  briefly  alluded. 

In  this  connection  I  call  attention  to  the  fact  that  mere 
similarity  of  title,  or  of  theme,  or  theory,  is  not  of  itself 
violative  of  the  author's  or  producer's  rights,  even  though 
he  be  first  in  the  field. 

As  in  the  matter  of  trade  names,  the  rule  is  that  the  use 
of  similar  trade  names  cannot  be  enjoined,  unless  fanciful 
and  original.  Thus,  if  a  man  were  to  use  the  name  "Ameri- 
can Girl,"  or  "Merry  Christmas,"  or  "Bohemian,"  to  desig- 
nate the  name  of  his  company,  or  motion  picture  corpora- 
tion, these  names,  not  being  fanciful  or  original,  could  not  be 
subject  to  be  restrained.* 

It  has  been  held  to  be  unfair  dealing  for  a  photo- 
play company  to  grant  to  another  exclusive  right  to  produce 
moving  picture  films  and  thereafter  to  grant  a  right  to  an- 
other to  exhibit  them.f 

When  the  author  has  given  a  contract  to  another  for  the 
exclusive  right  to  produce  a  play,  it  is  a  violation  of  his  con- 
tract to  permit  another  to  produce  his  play  by  moving  pic- 
tures, and  this  is  true  although  the  contracting  parties  did 
not  contemplate  a  moving  picture  production  of  the  play, 
because  then  impossible.  J 

In  this  connection  a  claim  was  made  that  since  the  con- 
tract for  the  production  of  the  drama  on  the  stage  with 
living  actors,  provided  it  was  to  be  shown  only  in  first-class 
theatres  and  in  a  first-class  manner,  the  parties  did  not  con- 
template that  the  author  reserve  to  himself  the  right  to  pro- 
duce it  in  a  second-class  theatre  or  in  a  second-class  manner. 
In  the  light  of  the  large  production  of  motion  picture  plays, 
such  as  "Intolerance,"  "Birth  of  a  Nation,"  "Civilization," 
"A  Daughter  of  the  Gods,"  etc.,  in  the  first-class  theatres  in 
New  York,  such  a  reservation  would  not  be  regarded  but 
as  humorous. 


*Wolff  Brothers  Company  v.   Hamilton  Shoe  Company,  165  Fed.    Rep.,  413;   Writ 
of  Certiorari  denied,  241  U.   S.,  215. 

Florence  Manufacturing  Company  v.   Dowd,  178  Fed.   Rep.,  73;   reversing  S.   C., 
171  Fed.  Rep.,  122. 

American  Brewing  Company  v.    Bienville  Brewery,  153  Fed.    Rep.,  615. 
tLasky  Feature    Play    Company   v.    Celebrated    Players    Film    Company,    214   Fed. 
Rep.,  861. 

tSee  Frohman  v.  Fitch,  164  A.  D.,  231. 

21 


TRADE  MARKS. 

Each  country  of  course  has  its  own  trade  mark  law  and 
they  differ  materially  from  each  other.  Frequently  the  trade 
mark  or  name  is  a  valuable  asset.  For  this  reason  they  are 
frequently  registered  as  such.  In  the  South  American 
countries  there  has  been  much  confusion  as  to  trade  names 
and  trade  marks  of  film  companies,  for  it  seems  there  that 
the  first  user  gets  the  right,  no  matter  how  extensively  and 
favorably  the  name  may  be  known  in  other  countries.  An 
illustration  of  South  American  law  on  the  subject  of  registra- 
tion is  that  of  Ecuador.  The  office  of  registration  is  known 
as  the  Ministrode  Asciendo  Quito.  The  registration  is  for 
twenty  years,  but  it  may  be  renewed  for  periods  of  fifteen 
years.  There  are  stipulated  fees  for  original  registration 
and  renewal.  The  right  to  the  trade  mark  is  vested  in  the 
individual  first  registering  it  and  no  legal  proceedings  can  be 
instituted  before  registration  of  the  trade  mark  to  prevent 
actual  or  intended  infringement.  This  is  substantially  the 
law  in  Argentine,  Brazil,  Paraguay,  Uruguay  and  Peru. 

COPYRIGHT  LAW. 

The  Copyright  Law  finds  its  origin  in  the  Federal  Con- 
stitution, which  provides  as  follows : 

"Art  1,  sec.  8,  subd.  8. 

"To  promote  the  Progress  of  Science  and  Useful  Arts,  by  securing  for 
limited  times  to  Authors  and  Inventors  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries." 

Congress,  in  pursuance  of  this  power  conferred  by  the 
Constitution,  has  devised  the  copyright  laws.  Therefore, 
most  of  the  cases  to  which  we  will  refer  are  those  contain- 
ing the  expression  of  the  Federal  Court  upon  the  subject; 
but  there  will,  of  course,  be  found  authorities  in  the  state 
courts  covering  the  copyright  phase,  which  pronouncements 
of  state  courts  are  not  based  upon  or  under  the  copyright 
law,  but  because  of  the  copyright  law. 

Of  course,  copyright  of  the  motion  picture  was  not  pro- 
vided for  by  the  original  copyright  statute,  and  it  was  not 
until  the  year  1909  that  the  Federal  courts  recognized  that 
on  account  of  the  growth  of  this  industry  that  copyright 

22 


laws  were  necessary.  Accordingly,  the  copyright  statute  was 
amended  to  include  motion  pictures.* 

It  was  the  amendment  of  August  24,  1912,  that  first  gave 
motion  picture  plays  a  place  in  the  Copyright  Law,  but  be- 
fore that  time,  by  a  decision  in  Edison  v.  Lubin,  122  Fed. 
Rep.,  p.  240,  it  was  adjudicated  that  motion  pictures  were 
copyrightable  under  the  law  as  photographs. 

In  construing  the  word  "author,"  under  section  2  of  the 
Copyright  Law,  the  Federal  Court,  in  Gaumont  v.  Hatch, 
208  Fed.  Rep.,  p.  378,  held  that  the  person  or  company  who 
produced  a  photo-play  was  an  author  within  the  meaning 
of  the  copyright  statute. 

I  have  already  called  attention  to  the  fact  that  the  United 
States  Supreme  Court  has  held  that  for  the  purpose  of  the 
Copyright  Law  motion  picture  photo-plays  are  considered 
dramas. t 

The  title  of  a  motion  picture  play  as  such  cannot  be 
copyrighted.  There  is  abundant  authority  which  sustains 
this  proposition  with  respect  to  motion  picture  plays,  or 
scenarios. £ 

What  may  be  copyrighted  is  the  story,  or  as  it  is  called 
in  the  trade,  the  scenario,  and  this  copyright  protects  the 
story  the  same  as  a  copyright  upon  a  play  or  a  book,  but  it 
does  not  protect  an  author  from  attack,  or  give  him  a  mon- 
opoly upon  a  theme  or  a  subject  which  is  not  original  to  the 
play  or  story  itself.  For  instance,  in  a  case  that  was  before 
the  courts,  where  the  play  or  story  was  written  around  the 
subject  of  the  theory  of  "destiny;"  the  mere  fact  that  an 
author  conceived  the  idea  of  writing  a  play  concerning  des- 
tiny did  not  give  him  the  exclusive  right,  because  he  had  a 
copyright,  over  another  person  who  later  also  conceived  the 
idea  of  a  story  based  upon  destiny.  The  reason  for  this,  as 


*See  Copyright  Act  of  March  4,  1909,  as  amended  by  the  Act  of  August  24,  1912, 
Section  4. 

tHarper  Brothers  v.  Kalem  Company,  222  U.  S.,  p.  55. 

jSelig  Polyscope  Co.  v.  Unicorn  Film  Service  Corp..  affecting  the  title  of  "The 
Rosary";  opinion  by  Mr.  Justice  Cohalan,  N.  Y.  Sup.  Ct..  reported  in  Law  Journal 
of  September  16,  1916,  at  p.  1,856. 

Haroer  v.  Raynolds,  67  Fed.  Rep.,  004,  905,  affecting  the  right  to  the  story 
"Trilby." 

23 


stated  by  the  court,  is  that  the  theme,  or  theory,  was  outside 
of  the  play.* 

Similarly,  another  case  cited  by  Judge  Mayer,  held  that 
the  owner  of  a  copyrighted  play,  based  upon  the  story  of 
hypnotic  influence,  was  not  entitled  to  deprive  others  from 
using  a  like  situation.! 

Judge  Mayer,  citing  authorities  to  sustain  his  position, 
said: 

"Since  both  stories  devolved  their  idea  from  a  common  source,  the  com- 
plainant had  no  case." 

A  motion  picture  play  has  been  held  to  be  a  "writing" 
within  the  language  of  the  Federal  Constitution.  In  Edison 
v.  Lubin,  122  Fed.  Rep.,  p.  240,  the  Court,  following  the 
decision  in  a  case  affecting  a  copyrighted  photograph  of 
Oscar  Wilde  which  Sarony,  the  photographer,  had  pro- 
duced:); so  held,  and  in  the  case  of  the  American  Music 
Company  v.  Edison  Manufacturing  Company,  137  Fed. 
Rep.,  265,  a  motion  picture  was  held  to  be  a  writing.  The 
Court  said: 

"It  is  a  writing  within  the  constitutional  sense  and  the  proper  subject 
of  a  copyright." 

The  common  law  rights  of  the  producer  of  motion  pic- 
ture plays,  not  copyrighted,  was  before  our  Court  in  Uni- 
versal Film  Mfg.  Company  v.  Copperman.  The  opinion 
will  be  found  in  full  at  218  Fed.  Rep.,  577.  It  affirmed  the 
decision  of  Judge  Hough  in  the  lower  court,  who  said : 

"There  was  an  analogy  between  the  production  of  a  motion  picture 
play  and  a  dramatic  performance,  and  that  it  made  no  difference  if  the  play 
was  mechanically  produced." 

Quoting  Judge  Hough,  the  Court  said: 

"If  there  is  no  film,  there  is  no  play,  and  unless  the  film  is  projected 
upon  a  screen,  the  film  is  worthless.  The  value  of  the  film  depends  entirely 
upon  the  popularity  of  the  play." 

The  Circuit  Court  of  Appeals  in  the  same  case  said  that 
the  producer  of  a  motion  picture  play  had  the  common  law 
rights  of  property  in  the  intellectual  conception  of  the  sce- 


*  See  opinion  of  U.  S.  District  Court,  Judge  Mayer,  in  Vernon  v.  Shubert.  220  Fed. 
Rep.,  694. 

tSee  Bachman  v.  Belasco,  224  Fed.  Rep.,  p.  815. 

JBorrow-Giles  Lithographing  Company  v.   Sarony,  111  U.   S.,  p.  53. 

24 


nario  of  the  play  expressed  in  words,  and  the  intellectual  con- 
ception of  the  photo-play  expressed  in  actions.  Continuing, 
the  Court  said: 

"When  the  producer  sold  a  positive  film,  which  was  the  only  means 
of  performing  the  play,  it  conferred  the  performing  rights  upon  the  pur- 
chaser and  his  assign.  That  no  one  by  virtue  of  that  sale  would  have  ac- 
quired the  right  to  re-enact  the  play  and  take  a  negative  of  it,  or  make,  if 
that  could  be  done,  a  new  negative  from  the  positive  film." 

The  Court  later  said: 

"That  would  be  inconsistent  with  the  producer's  common  law  property 
in  the  photo-play,  and  that  the  mere  performing  right  which  it  had  con- 
ferred upon  the  owner  of  the  film,  he  exercises  a  performing  right  by  one 
or  by  many  purchasers  of  positive  films  would  be  entirely  consistent  with  the 
producer's  common  law  property  in  the  play  itself." 

A  review  of  this  case  was  denied  by  the  Supreme  Court 
on  December  14,  1914. 

A  corporation  may  be  an  author  of  a  motion  picture 
play,  and  within  the  copyright  act,  section  62,  the  word 
"author"  is  sufficiently  comprehensive  to  include  a  corpora- 
tion as  well  as  a  natural  person.* 

WHAT  MAY  BE  COPYRIGHTED  UNDER  THE 
COPYRIGHT  ACT. 

1 — A  Scenario. 

2— The  Picture. 

In  practice  it  is  very  common  for  the  producer  to  first 
copyright  the  scenario,  or  story,  of  the  plot,  and  then  after 
production  send  the  reels  of  pictures  themselves  to  the  copy- 
right office  for  registry. 

Here  we  might  properly  consider  the  rights  of  foreign 
authors  under  our  copyright  law,  if  time  permitted,  and  the 
rights  of  the  owners  of  dramatic  plays,  by  license  or  agree- 
ment from  the  author  as  to  the  exhibition  thereof  of  photo- 
plays. The  law  on  this  subject  is  not  entirely  clear;  the  con- 
flict of  decision  cannot  be  duly  reconciled  and  time  will 
not  permit  me  to  do  more  than  make  a  passing  reference 
that  there  is  such  a  situation. 


"See  Gaumont  Company  v.   Hatch,  208  Fed.   Rep.,  p.  381. 

25 


CENSORSHIP. 

There  is  a  movement  for  a  National  Censor,  and  in 
some  States  a  State  Censor  has  already  been  provided  for. 
There  is  no  more  need  for  a  censorship  for  a  film  than  there 
is  for  the  printing  press,  and  if  you  are  going  to  censor  the 
one,  you  must  certainly  censor  the  other;  and  if  ever  the 
time  when  a  censorship  of  either  the  press  or  the  film  should 
be  an  accepted  and  universal  fact  in  this  country,  then  the 
principles  of  democratic  government  are  no  longer  part  of 
our  abiding  faith.  There  has  never  been  a  censor  of  the 
theatre  in  this  country,  so  that  in  those  States  in  which  the 
movement  against  free  expression  has  succeeded  in  putting 
on  the  statute  books  a  censor  for  the  motion  pictures,  an 
innovation  has  been  undertaken,  which  would  be  very  splen- 
did if  it  were  not  for  the  fact  that  in  a  very  short  time  even 
these  States  will  find  that  there  is  nothing  for  the  censor  to 
do — nothing  that  he  would  dare  do — that  the  police  power 
has  not  always  been  ready  and  able  to  do. 

In  England  there  has  always  been  more  or  less  censor- 
ship, although  during  the  period  of  the  most  active  censor- 
ship, the  period  of  The  Restoration,  the  plays  were  more  im- 
moral than  at  any  other  time.  Coleman,  the  dramatist, 
acted  as  censor,  and  his  plays  were  as  immoral  as  the  worst 
plays  of  his  day. 

When  the  photo-play  came  into  existence,  there  was 
naturally  a  rush  to  include  under  the  censorship  any  new 
form  of  entertainment  or  drama.  As  Messrs.  Fowell  and 
Palmer  have  pointed  out  in  their  interesting  monograph  on 
English  censorship :  "There  wavs  nothing  that  stirred  the 
reform  element  so  much  as  the  thought  that  the  English 
populace  were  enjoying  themselves,"  and  the  fact  that  the 
populace  had  taken  the  cinematograph  to  its  bosom,  without 
reserve  and  with  enthusiasm,  was  sufficient  reason  to  the 
reform  element  to  believe  that  there  was  something  the 
matter  with  the  cinematograph. 

The  first  attack  was  made  on  the  ground  that  the  Sunday 
law  was  being  violated,  and  this  was  followed  by  a  charge 

26 


that  inasmuch  as  these  pictures  were  exhibited  in  the  dark, 
darkness  was  an  evil,  as  it  tended  to  encourage  sexual  im- 
morality. In  fact,  this  was  the  situation  in  our  own  city 
and  State,  for  in  December,  1908,  at  a  public  hearing, 
(Mayor  McClellan's  report  of  which  will  be  found  in  a 
volume  in  the  Mayor's  office,  entitled  "Hearing  on  Moving 
Picture  Shows,  December  23,  1908,")  eminent  clergymen, 
educators  and  public  spirited  citizens  of  national  repute 
argued  for  the  abolition  of  the  motion  picture  theatre  on 
practically  the  same  grounds.  Some  of  these  men  are  now 
the  strongest  advocates  of  the  motion  picture  theatre  as  a 
neighborhood  center  for  the  dissemination  of  education, 
learning  and  culture. 

The  lecturer  appeared  before  the  Mayor  at  that  hear- 
ing, and  some  of  the  assertions  I  then  made  as  to  the  future 
of  this  industry  were  regarded  as  extremely  humorous;  in 
fact,  I  stood  almost  alone  except  for  the  moral  support  of 
Commodore  J.  Stuart  Blackton,  of  the  Vitagraph  Com- 
pany, and  we  were  regarded  as  being  iconoclasts.  As  a  re- 
sult of  this  hearing,  the  Mayor  cancelled  the  license  of  every 
motion  picture  theatre  in  the  City  of  New  York,  numbering 
about  600,  but  his  action  was  declared  by  the  court  to  be 
arbitrary,  capricious  and  whimsical,  and  his  act  was  enjoined 
and  restrained.* 

After  the  Sunday  objection,  the  attack  in  England  was 
on  the  films  themselves,  and  several  cases  were  brought  to 
court.  A  feature  was  made  of  the  fact  that  boy  offenders 
were  taught  to  steal  by  seeing  feats  of  great  burglary  on  the 
cinematograph.  This  led  to  a  hue  and  cry  for  a  censor- 
ship, leading  one  cynical  observer  to  ask  the  question  where 
the  other  burglars  of  the  past  few  thousand  years  had 
learned  their  business  before  the  invention  of  the  cinemato- 
graph. Finally  a  censor  was  appointed,  Mr.  G.  A.  Redford, 
and  the  spirit  with  which  he  undertook  the  job  may  be 
judged  from  the  lists  of  things  which,  on  his  inauguration, 
he  promised  to  keep  off  the  films : 

"No  cremations. 


•See  Wm.  Fox  v.  McClellan,  62  Misc.,  100. 

27 


"No  final,  tear-compelling  scenes  at  funerals,  such  as  lowering  the  body 
into  the  grave,  and  so  on. 

"No  scenes  representing  murder,  sudden  death,  or  suicide. 

"No  'faked'  representations  of  disasters  by  sea  or  land  or  air. 

"No  mixed  bathing.  No  'compromising  situations.'  No  cock  fights,  no 
dog  fights,  and  nothing  where  unnecessary  cruelty  is  brought  in,  either  to 
man  or  beast. 

"All  Biblical  scenes  to  be  watched  very  carefully — particularly  anything 
from  the  New  Testament. 

"No  Sovereigns,  Judges,  Ministers,  or  such  high  officials  of  the  land  to 
be  treated  in  an  unbecoming  or  ridiculous  manner,  and  no  living  individual 
to  be  lampooned." 

Naturally,  in  France,  where  the  arts  are  understood  and 
appreciated,  one  expects  to  find  sanity  in  the  discussion 
of  this  matter  of  censorship.  The  only  restraint  upon  a  per- 
formance at  a  theatre  is  exercised  by  the  police  authorities, 
who  may  prosecute  a  manager  if  it  is  considered  there  is 
anything  in  the  play  that  tends  to  endanger  public  order  or 
is  inclined  to  be  prejudicial  to  public  morals. 

In  a  little  book  by  E.  Kress,  entitled  "Pour  Ouvrir  un 
Cinema,"  the  legal  formalities  are  explained,  and  there  we 
learn  that  after  a  very  acrimonious  debate  in  the  Chamber 
of  Deputies,  between  M.  Breton  and  M.  G.  Berry,  it  was 
decided  that  the  motion  picture  would  not  be  classed  with 
theatrical  exhibitions,  and  that  their  entire  regulation  came 
under  the  head  of  the  Department  of  Police.  In  other 
words,  instead  of  the  motion  picture,  as  it  would  have  under 
the  old  law,  coming  under  the  Department  of  the  Minister 
of  the  Interior,  it  was  regarded  as  a  "spectacle  of  curiosity," 
and  as  such  simply  regulated  by  the  police  code  under  the 
arret  of  Messidor,  in  the  year  eight  of  the  Republic  and  by 
the  Municipal  Law  of  Paris  in  the  year  1884,  Article  97. 

A  state  censorship  existed  in  France  up  to  1908,  but  the 
only  censorship  that  exists  now  is  that  of  the  police  authori- 
ties, who  may  prosecute  a  manager  if  they  consider  that  the 
photo-play  may  endanger  public  order  or  if  prejudicial  to 
public  morals.  And,  incidentally,  I  should  like  to  call  your 
attention  to  just  what  is  happening,  i.  e.,  that  as  state  censor- 
ship of  the  theatre  has  lessened  in  popularity  in  Europe,  and 
has  gradually  tended  to  abolition,  the  idea  seems  to  have 
grown  up  in  America  that  it  is  something  this  free  govern- 
ment should  take  up. 

28 


LAWS  OF  EUROPE. 

On  account  of  the  war  it  has  not  been  easy  to  collect 
facts  as  to  the  laws  in  Europe,  but  I  give  herewith  a  brief 
synopsis  of  the  attitude  toward  censorship  of  many  Euro- 
pean countries  up  to  that  time.  For  the  major  part  of  the 
summary  I  am  indebted  to  the  report  of  the  Joint  Com- 
mittee of  the  House  of  Lords  and  the  House  of  Commons, 
appointed  in  1909  to  investigate  for  Parliament  the  ques- 
tion of  censorship  : 

Belgium:  There  is  no  state  censorship  of  plays.  The 
municipal  authorities  are  responsible  for  the  preservation 
of  order  in  a  theatre,  and  have  the  right  to  prevent  a  per- 
formance of  any  play  which,  in  their  opinion,  might  be  likely 
to  arouse  public  feeling. 

Denmark:  A  license  from  the  Ministry  of  Justice  is 
required  for  the  giving  of  theatrical  performances.  The 
license  is  granted  on  condition  that  the  plays  produced  are 
first  submitted  to  a  censor,  appointed  by  the  Minister  of 
Justice,  from  whose  decision  there  is  an  appeal  to  the  Min- 
istry. In  Copenhagen  it  is  also  the  censor's  duty  to  super- 
vise performances  at  music  halls,  etc.,  and  no  song  or  other 
kind  of  entertainment,  including  cinematograph  representa- 
tions, may  be  given  unless  the  censor  has  approved  of  it 
before  productions.  In  the  Provinces  the  duties  of  the 
censor,  with  regard  to  the  control  of  the  music  halls,  etc., 
are  discharged  by  the  police. 

Holland:  The  control  of  theatrical  and  other  perform- 
ances is  vested  in  the  Burgomaster  of  every  town  by  Article 
188  of  the  Municipal  Law  of  1851.  His  duty  is  to  watch 
against  anything  which  is  in  conflict  with  public  order  and 
decency. 

Italy:  The  control  of  theatrical  and  other  public  per- 
formances is  regulated  by  a  Statute  passed  in  the  year  1889. 
No  public  performance  of  any  kind  may  be  given  unless  the 
leave  of  the  Public  Security  Authorities  have  been  obtained. 
This  department  is  responsible  for  the  safety,  etc.,  of  the 
public  in  all  places  of  entertainment.  In  addition  to  this,  no 

29 


opera  or  stage  play  of  any  kind  may  be  produced  without 
the  approval  first  obtained  of  the  Prefect  of  the  Province 
in  which  it  is  to  be  performed.  The  Prefect  may  withhold 
his  consent  to  any  performance  upon  the  grounds  of  morality 
or  public  order.  There  is  an  appeal  from  his  decision  to 
the  Minister  of  the  Interior. 

Portugal:  The  censorship  of  all  public  performances 
is  vested  in  the  Civil  Governor  who,  in  the  outlying  town- 
ships of  his  district,  delegates  his  powers  to  his  subordinates. 
In  Lisbon  the  general  powers  of  the  Civil  Governor  are  dele- 
gated to  the  Civil  Police,  to  a  branch  of  which  body,  viz., 
the  Administrative  Police,  belong  the  censorship  of  theatri- 
cal performances.  The  head  of  that  body  is  practically  the 
censor  of  stage  plays. 

Spain:  The  representatives  of  theatrical  companies 
must  supply  the  Civil  Governor,  or  the  Mayor,  in  towns 
other  than  provisional  capitols,  with  two  copies  of  every 
dramatic  work  which  is  to  be  preformed  for  the  first  time. 
Such  copies  must  be  signed  by  the  authors  or  by  representa- 
tives of  the  company,  and  must  be  in  the  hands  of  the  au- 
thorities on  the  same  day,  and  at  the  same  hour,  on  which 
the  play  is  to  be  performed.  When,  in  the  opinion  of  the 
authorities,  the  performance  of  a  dramatic  work  involves 
committing  any  offense  included  in  the  Penal  Code,  it  is  at 
once  denounced  to  a  competent  court,  to  which  are  sent  the 
copies  of  the  play  which  have  been  deposited  with  the  Civil 
Governor.  The  performance  of  the  play  is  at  once  sus- 
pended until  the  decision  of  the  Court  of  Justice  has  been 
given. 

Sweden:  There  is  no  longer  any  State  Censorship  of 
plays,  but  anyone  who  wishes  to  give  a  dramatic,  musical  or 
other  public  performance,  is  obliged  to  notify  the  local  police 
of  his  intention.  No  special  permission,  however,  from  the 
police  authorities  is  usually  necessary  for  giving  dramatic 
or  musical  performances. 

Saxony:  A  distinction  is  made  between  the  Royal 
Theatre  and  the  theatres  under  private  control.  In  the 
former  a  censorship  is  exercised  over  stage  plays  by  an 

30 


official  called  the  Dramaturg;  in  the  latter  the  control  is  in 
the  hands  of  the  police.  The  police  censorship  is  conferred 
upon  a  high  judicial  officer,  whose  duty  it  is  to  examine  every 
new  play  with  regard  to  its  moral,  political  or  religious  ten- 
dency. 

Duchy  of  Baden:  The  regulations  of  theatres  and  the 
control  over  theatrical  and  other  public  performances,  ex- 
cept in  the  Grand  Ducal  Theatre  and  the  National  Theatre 
at  Mannheim,  which  are  controlled  by  an  official  censor, 
are  vested  in  the  police,  who  have  power  to  suppress  any 
performance  calculated  to  give  offense  or  produce  disorder. 

Kingdom  of  Bavaria:  Since  February,  1808,  an  advi- 
sory Censorship  Council  has  been  established  at  Munich  in 
connection  with  the  Directorate  of  Police.  This  Council 
consists  of  five  members,  namely,  an  author,  an  artist,  a  lin- 
guist, a  schoolmaster  and  a  physician.  The  Council  gives 
notice  to  the  police,  either  verbally  or  in  writing,  when  it  is 
in  doubt  as  to  the  desirability  of  allowing  the  production  of 
any  dramatic  work.  This  system  is  purely  local  at  present. 

In  Russia  there  is  no  censorship  from  the  point  of  view 
of  morality.  The  regulation  of  the  theatre  and  the  cine- 
matograph is  in  most  places  under  the  control  of  what  is 
known  as  the  Upravlenve  po  dyelam  pechati — (Regulator 
of  Public  Printing) — and  this  gentleman  is  also  the  regu- 
lator of  the  press,  his  business  being  to  see  that  no  political 
or  religious  matters  are  discussed  on  the  stage  or  shown  on 
the  screen.  As  Dr.  Rosenthal,  a  Russian  authority,  recently 
remarked:  "Russia  is  not  interested  in  the  question  of  vice; 
the  people  are  not  yet  educated  enough  to  know  much  about 
vice ;  when  they  have  achieved  a  higher  state  of  civilization, 
then  it  will  be  necessary  to  regulate  their  morals." 

In  Austria,  immediately  after  the  reactionary  period  of 
1848,  censorship  was  decreed  which  permitted  the  censor  to 
forbid  whatever  he  disliked,  whether  it  was  particular 
words,  scenes  or  the  whole  play.  As  the  result  of  the  prohi- 
bition of  censors,  noteworthy  plays,  as  Max  Halbe's  Jugend 
and  Gerhard  Hauptmann's  Weavers  and  Ernest  von  Wil- 

31 


denbruch's  Herlnrich-drama,  were  prohibited,  and  a  strenu- 
ous movement  arose  in  Austria  against  the  censorship,  but 
made  practically  little  headway. 

Interesting,  because  of  the  unusual  progressive  quality 
of  all  the  New  Zealand  legislation,  and  doubly  interesting 
because  it  is  the  only  law  that  I  have  been  able  to  obtain 
from  Australia,  is  the  New  Zealand  Law,  which  has  per- 
haps an  additional  interest  in  that  we  find  that  it  was  passed 
on  the  seventh  day  of  August,  and  that  the  only  other  two 
laws  passed  by  the  General  Assembly  in  New  Zealand  on 
that  same  day  was  a  law  that  related  to  the  conduct  and  the 
part  being  played  by  New  Zealand  in  the  great  European 
war,  and  a  law  for  encouraging  the  fruit  growing  industry 
in  New  Zealand.  The  law  is  interesting  in  full  on  account 
of  the  terseness  and  the  clarity  of  the  language.  It  is  en- 
titled: "An  Act  to  Provide  for  the  Censoring  of  Cinemato- 
graph Films." 

BE  IT  ENACTED  by  the  General  Assembly  of  New  Zealand,  in  Par- 
liament assembled,  and  by  the  authority  of  the  same,  as  follows: 

1.  This  Act  may  be  cited  as  the  Cinematograph-film   Censorship  Act, 
1916. 

2.  On  and  after  the  first  day  of  October,  1916,  it  shall  not  be  lawful  to 
exhibit  any  cinematograph-film  unless  it  has  been  approved  in  the  manner 
hereinafter  provided. 

3.  (1)   There  shall  be  appointed  from  time  to  time,  by  the  Governor, 
such  fit  persons  as  the  Governor  deems  necessary  as  censors  of  cinemato- 
graph-films, who  shall  hold  office  during  the  Governor's  pleasure. 

(2)   The  provisions  of  the  Public  Service  Act,  1912,  shall  not  apply 
to  persons  so  appointed. 

4.  (1)   It  shall  be  the  duty  of  every  person  so  appointed  to  examine  every 
cinematograph-film  submitted  to  him  for  approval. 

(2)  Such    approval    shall    be    signified   by   a   certificate    in   the    pre- 
scribed form. 

(3)  Such  approval  shall  not  be  given  in  the  case  of  any  film  which, 
in  the  opinion  of  the  censor,  depicts  any  matter  that  is  against  public  order 
and   decency,   or  the   exhibition   of  which   for   any   other   reason   is,   in   the 
opinion  of  the  censor,  undesirable  in  the  public  interest. 

(4)  Such  approval  may  be  given  generally,  or  may  be  given  subject 
to  a  condition  that  the  film  shall  be  exhibited  only  to  a  specified  class  or 
classes  of  persons. 

(5)  There  shall  be  a  right  of  appeal  from  every  decision  of  a  censor 
under  this  Act  to  such  person  or  persons,  and  in  such  manner  and  subject 
to  such  conditions,  as  may  be  prescribed  by  regulations  under  this  Act. 

5.  A  film  to  which  any  matter  has  been  added  after  it  has  been  approved 
by  the  censor  shall  be  again  submitted  for  approval,  and  until  it  has  been 
been  approved  again,  shall  be  deemed  not  to  have  been  approved. 

32 


6.  There  shall  be  payable  for  every  film  submitted  for  approval  under 
this  Act  such  fees  as  are  prescribed. 

7.  (1)   Every  person  who  exhibits  any  film  in  contravention  of  this  Act 
is  liable  to  a  fine  not  exceeding  fifty  pounds,  and  the  film  may  be  ordered  by 
the  convicting  board  to  be  forfeited  to  the  Crown. 

(2)   Any  film  so  forfeited  shall  be  dealt  with  in  such  manner  as  the 
Minister  of  Internal  Affairs  directs. 

8.  The   Governor  may,   from  time  to  time,  by  order  in   Council,   make 
such  regulations  as  he  deems  necessary  to  give  effect  to  this  Act. 

In  the  latest  edition  of  "Recopil  acion  de  Leyes  V sales 
de  la  Republica  Argentina  I  have  been  unable  to  find  any 
general  law  dealing  with  the  moving  picture  industry,  or 
the  question  of  censorship.  In  the  matter  of  South  Ameri- 
can Law,  the  latest  reports  that  we  have  in  this  country, 
both  from  Chile  and  from  Venezuela,  are  from  1914. 
Neither  the  Recopilacion  de  Leyes  y  decretos  of  Venezuela 
or  Chile,  up  to  1914,  show  that  there  was  any  legislation  put 
upon  the  books. 

The  Civil  Code  of  Japan  (the  latest  copy  of  which  I 
have  been  able  to  find  in  this  country  is  for  1909)  makes 
naturally  no  mention  of  the  cinematograph.  We  know  his- 
torically, however,  that  up  to  the  latter  half  of  this  century 
there  was  an  even  deeper  prejudice  in  Japan  against  the 
theatre  than  there  was  in  England,  actors  being  regarded  as 
outcasts  and  theatres  as  places  in  which  no  gentleman  should 
be  seen,  and  only  as  places  that  were  fit  for  the  lower  classes. 
No  Samurai  ever  entered  the  theatre  up  to  the  latter  half  of 
the  last  century,  and  the  broadening  theatre  movement  did 
not  receive  official  sanction  until  1879,  when  President 
Grant,  on  his  visit  to  Japan,  visited  one  of  the  leading 
theatres  of  Tokio.  Naturally  we  can  understand  that  there 
would  be  little  desire  to  censor  theatres  when  the  upper 
class  did  not  even  go  near  them. 

When  we  come  to  the  laws  of  this  country,  it  is  inter- 
esting to  note  that  only  eight  of  the  States  have  placed  on 
the  statute  books  a  law  that  would  in  any  way  permit  the 
film  to  be  censored.  In  the  State  of  Pennsylvania  a  Board 
of  Censors  has  been  appointed,  the  Board  consisting  of  three 
residents  and  citizens  of  Pennsylvania,  two  males  and  one 
female,  well  qualified  in  education  and  experience  to  act 

33 


as  censors  under  this  Act.  One  male  member  of  the  Board 
shall  be  Chairman,  the  female  member  shall  be  Vice-chair- 
man, and  one  member  (male)  shall  be  secretary.  They 
shall  be  appointed  by  the  Governor  for  terms  of  three  years. 
Those  first  appointed  under  this  Act  shall  be  appointed  for 
three  years,  two  years  and  one  year,  respectively,  their 
respective  tertns  to  be  designated  by  the  Governor. 

Section  6,  of  the  Pennsylvania  Act,  declares  that  "The 
Board  shall  examine  or  supervise  the  examination  of  all 
films,  reels  or  views  to  be  exhibited  or  used  in  Pennsylvania, 
and  shall  disapprove  such  as  are  sacriligious,  obscene,  in- 
decent or  immoral,  and  such  as  tend,  in  the  judgment  of  the 
Board,  to  debase  or  corrupt  morals.  This  section  shall  not 
apply  to  announcement  or  advertising  slides." 

In  Kansas,  Laws  of  1913,  Chapter  294,  Page  504,  the 
law  states  that  "It  shall  be  unlawful  for  any  person,  firm  or 
corporation  to  exhibit  or  use  any  moving  picture  film,  or 
reel,  unless  the  said  film,  or  reel,  shall  have  been  examined 
and  approved." 

It  also  states,  Section  2,  that  it  shall  be  his  duty  "to 
examine  all  moving  picture  films,  or  reels,  intended  for 
exhibition  in  this  State,  and  approve  such  as  he  shall  find 
to  be  moral  and  instructive,  and  to  withhold  approval  from 
such  films,  or  reels,  as  tend  to  debase  or  corrupt  morals." 
This  statute  was  passed  upon  by  the  United  States  Supreme 
Court  and  declared  to  be  constitutional.* 

In  Ohio  it  is  declared  to  be  the  duty  of  the  Board  of 
Censors  "to  examine  and  censor  all  motion  picture  films  to 
be  publicly  exhibited  in  the  State  of  Ohio  *  *  *.  Only  such 
films  as  are,  in  the  judgment  and  discretion  of  the  Board  of 
Censors,  a  certificate  showing  approval  or  rejection  of  such 
film  shall  be  issued  to  the  party  submitting  it.  When  a 
film  is  passed  and  approved  by  the  Board  of  Censors,  such 
film  shall  be  given  an  approval  number,  which  shall  be 
shown  on  the  certificate  issued  by  the  said  Board  of  Censors 
to  be  the  party  submitting  the  film."  This  statute  has  also 


*See  Mutual  Film  Corporation  v.  Kansas,  236  U.  S.,  248. 

34 


been  before  the  United  States  Supreme  Court  for  construc- 
tion on  a  claim  of  violation  of  constitutional  rights,  but  the 
statute  was  held  to  be  constitutional.* 

In  the  other  States  in  which  there  are  laws,  such  as 
Michigan,  Florida,  Louisiana,  Alabama,  Massachusetts, 
Maine  and  Connecticut,  the  law  pertains  only  to  the  sanitary 
and  fire  regulations,  and  looks  to  no  more  than  the  building 
operations  so  as  to  insure  the  safety  of  the  patrons.  In 
Louisiana,  however,  in  1914,  a  law  was  passed  which  per- 
mitted "any  city,  town  or  village,  from  and  after  the  pro- 
mulgation of  this  Act,  through  its  proper  legislative  branch 
*  *  *  *  to  adopt  any  ordinance  or  law  for  the  regula- 
tion, by  censorship,  of  moving  picture  theatres  and  shows, 
nickelodians,  theatoriums,  penny,  five  and  ten  cent  arcades, 
and  all  places  of  amusement  showing,  operating  or  display- 
ing motion  pictures  for  which  an  admission  is  charged  or 
has  been  made." 

I  made  reference  to  two  opinions  in  the  United  States 
Supreme  Court  holding  that  censorship  laws  in  Kansas  and 
Ohio  were  declared  to  be  constitutional.  I  do  not  wish, 
however,  to  be  understood  as  admitting  the  soundness  of 
these  decisions.  On  the  contrary,  I  claim  and  shall  present- 
ly attempt  to  demonstrate  that  they  are  clearly  wrong  in 
principle. 

There  has  been  introduced  in  Congress  a  bill  by  Mr. 
Hughesf,  creating  a  Federal  Board  of  Censors  of  motion 
pictures,  the  basis  of  which  is  the  regulation  of  commodities 
passing  through  interstate  channels.  One  of  the  provisions 
of  the  bill  is  that  the  censors  are  empowered  to  reject,  among 
other  things,  photo-plays  which  have  a  tendency  to  incite 
crime. 

Of  course  this  provision  is  absolutely  unnecessary.  It  is 
fully  covered  by  both  Federal  and  State  statutes.  Assuming 
that  the  picture  shown  is  one  that  would  incite  to  murder, 
the  people  who  are  responsible  would,  under  both  State  and 

*See  Mutual  Film  Corporation  v.  Ohio  Industrial  Commission,  236  U.  S.,  230. 
t  House  of  Representatives  Bill  456,  December  6,  1915,  referred  to  the  Committee 
on  Education. 

35 


Federal  legislation,  be  guilty  of  homicide.  If  guilty,  would 
you  first  punish  them  under  the  Federal  statute  by  a  year's 
imprisonment  provided  for  in  the  Censorship  Act  and  then 
execute  them  under  the  State  statute  for  murder  ?  Or  would 
you  first  execute  them  for  the  murder,  under  the  State  stat- 
ute, and  then  punish  them  by  imprisonment  under  the  Fed- 
eral statute  ? 

Continuing  this  situation,  let  us  imagine  that  the  State 
authorities  first  intervene,  and  after  a  conviction  execute  the 
individual,  or  individuals,  for  homicide.  An  interesting 
contest  would  arise  as  to  whether  the  body  should  be  turned 
over  to  the  family  for  interment,  or  whether  it  should  be 
surrendered  to  the  Federal  authorities  for  prosecution  under 
the  censorship  statute,  and  for  imprisonment  if  the  corpse 
be  found  guilty. 

Let  us  analyze  for  a  moment  what  the  legal  effect  of 
censorship  on  photo-plays  would  be.  The  proprietor  of  a 
newspaper  in  the  United  States,  in  the  interest  of  public 
welfare,  desires  to  print  a  cartoon  of  a  man  or  group  of 
public  characters.  This  he  may  do  freely,  subjecting  him- 
self only  to  penal  or  civil  laws  of  the  community  in  which 
the  publication  is  made.  Under  a  system  of  censorship, 
assuming  that  the  same  proprietor  of  the  newspaper  is  also 
the  owner  of  a  film  producing  company,  or  the  proprietor  of 
a  motion  picture  theatre,  if  he  desires  to  throw  upon  the 
screen  exactly  the  same  cartoon  as  appeared  in  his  news- 
paper, he  must  first  obtain  the  permission  of  the  censor  to 
do  so. 

So,  too,  a  man  or  a  person  interested  in  promulgating  a 
theory,  or  engaged  in  a  propaganda  that  requires  local  ad- 
vertising, may  do  so  freely  upon  the  mere  payment  of  the 
newspaper  charges.  Desiring  to  advertise  the  same  matter 
upon  the  screen,  he  must  first  obtain  the  permission  of  the 
censor  to  do  so;  and  non  constat,  it  may  follow  that  although 
the  newspaper  published  the  printed  matter,  without  offense 
against  the  crminal  laws,  or  even  against  the  civil  laws  of  the 
community,  the  censor  prohibits  and  inhibits  the  same  mat- 
ter from  being  advertised  upon  the  screen. 

36 


I  might  dilate  further  on  the  subject,  but  I  think  I  have 
done  so  sufficiently  to  establish  the  fact  that  when  the  last 
word  is  heard,  it  will  be  that  it  is  unconstitutional  to  restrict 
or  deprive  an  individual  of  the  right  of  free  expression. 

To  prevent  free  expression  of  thought,  whether  in  the 
press  or  on  the  screen,  would  be  to  create  a  situation  similar 
to  the  one  which  made  the  American  Colonists  rebel  and  led 
Thomas  Jefferson  to  say:  "I  would  rather  live  in  a  country 
where  there  are  newspapers  and  no  government  than  live  in 
a  country  where  there  is  government  and  no  newspapers." 

I  now  come  to  the  consideration  of  the  decision  of  the 
United  States  Supreme  Court,  reviewing  the  constitution- 
ality of  the  statutes  of  Ohio  and  Kansas.  I  have  said  that 
I  disagree  with  those  decisions  on  principle,  and  I  assert  that 
censorship  of  motion  pictures  is  absolutely  and  unqualifiedly 
in  defiance  of  the  spirit,  and  subversive  of  the  letter  of  the 
constitution. 

For  aside  from  the  question  as  to  whether  censorship  is 
violative  of  the  Fourteenth  Amendment,  it  is  not  constitu- 
tional because  there  is  no  express  provision  for  it  in  the  Con- 
stitution, unless  it  be  found  in  the  Commerce  Clause. 

It  is  interesting,  if  not  refreshing,  to  observe  that  the 
ground  upon  which  censorship  of  motion  pictures  is  urged 
is,  that  under  the  Commerce  Clause  of  the  Federal  Consti- 
tution, power  is  found  to  regulate  the  shipment,  sale  and 
use  of  motion  pictures  traveling  in  interstate  commerce. 
Because  of  this  constitutional  provision,  it  is  assumed  that  the 
censorship  may  be  exercised.  This,  to  my  mind,  is  straining 
the  constitutional  provision  beyond  all  limits. 

It  is  conceded  that  a  censorship  of  the  press  is  violative 
of  the  spirit  and  the  letter  of  the  Constitution.  It  follows 
that  if  there  is  an  analogy  between  the  screen  and  the  press, 
as  I  have  indicated  earlier  in  this  lecture,  despite  the  declara- 
tion of  the  United  States  Supreme  Court  to  the  contrary, 
that  censorship  of  matter,  projected  or  portrayed  upon  the 
screen  is  likewise  unconstitutional. 

If  power  is  to  be  found  under  the  Constitution  to  censor 
motion  pictures  because  the  reels  are  sent  in  the  channels  of 

37 


interstate  commerce,  traveling  from  State  to  State,  the  news- 
papers of  to-day  are  likewise  sent  through  the  mail  from 
State  to  State,  (both  by  mail  and  the  express),  so  that  if  the 
Commerce  Clause  permits  the  censorship  of  films,  because 
the  reels  are  sent  by  mail  or  express  through  the  States,  such 
continuous  acts  would,  upon  the  same  principle,  permit  the 
establishment  of  a  censorship  over  newspapers  transmitted 
in  interstate  commerce. 

It  is  very  well  to  say  that  Congress  has  passed  laws 
which  have  been  declared  constitutional,  regulating  the  sale 
and  use  of  food,  drugs,  liquors  and  other  commodities  which 
travel  in  interstate  commerce,  but  Congress  there  was  deal- 
ing with  an  article,  the  use  or  abuse  of  which  was  inherently 
dangerous  to  the  life,  health  and  well  being  of  the  com- 
munity. 

The  motion  picture  reel  as  such,  however,  contains  no 
such  inherent  danger.  The  excuse  offered,  (and  I  use  the 
term  "excuse"  advisedly)  is  that  the  effect  of  the  portrayal 
of  a  scene  upon  a  screen  may  have  an  effect  upon  the  mind  of 
the  spectator.  But  here  again,  if  this  be  the  effect,  then  the 
State  statute,  or  State  regulations,  will  condemn  the  quality 
of  the  picture  and  the  offender  would  be  subjected  to  prose- 
cution under  the  criminal  law. 

The  situation  is  not  so  apparent  with  food,  drugs  and 
liquors  passing  in  interstate  commerce,  because  all  the  States 
have  not  established  pure  health  and  pure  food  laws.  In 
addition,  the  use  of  food,  drugs  and  drink  affects  the  physical 
well  being  of  the  citizen  of  the  State  and  of  the  Nation  as 
such.  If  the  far-fetched  argument  may  be  used,  that  the 
physical  well  being  of  the  man  who  is  subject  to  call  to  the 
duty  of  his  country,  to  the  colors  and  the  flag,  is  the  ground 
for  the  legislation,  it  can  be  answered  that  it  is  not  essential 
for  a  man  to  be  high-minded  morally  to  be  a  good  soldier, 
whereas  it  is  quite  essential  that  he  shall  be  physically  sound 
for  military  service. 


38 


CENSORSHIP  IN  HISTORY. 

The  very  form  of  government  under  which  we  live,  that 
is,  a  democracy  of  a  kind  that  has  never  existed  anywhere 
else  in  the  world,  because  all  ancient  democracies  (Greek, 
Roman  and  those  of  the  Middle  Ages,  etc.)  were 
democratic  only  to  a  limited  number  of  people.  The  very 
democracy  under  which  we  live,  as  I  have  said,  grew  out  of 
the  question  of  censorship. 

During  the  administration  of  John  Adams,  it  will  be 
recalled  that  in  a  moment  of  political  madness  there  were 
passed  two  laws,  known  as  the  Alien  and  Sedition  Laws. 
The  Sedition  Law  gave  the  President  the  power  to  sum- 
marily punish  anyone  who  criticised  the  Government  in 
print,  and  to  regulate  the  press  in  so  far  as  criticism  of  the 
Government,  or  any  member  of  the  administration,  was 
concerned. 

Despite  the  fact  that  back  of  this  measure,  when  it  was 
passed,  was  John  Adams  and  the  brains  of  the  Federalist 
Party;  despite  the  fact  that  at  the  time  the  Government  was 
new  and  young,  and  the  press  was  supposed  to  be  particu- 
larly licentious  and  extreme,  so  widespread  was  the  indig- 
nation that  Adams  was  defeated  for  the  Presidency  in  1800. 
The  Federalist  Party  practically  passed  out  of  existence; 
Thomas  Jefferson  became  President  of  the  United  States, 
and  the  Jeffersonian  Democratic  Party,  pledged  to  an  un- 
censored  press,  came  into  control  almost  unanimously. 

That  was  the  only  time  in  the  history  of  these  United 
States  that  there  was  ever  a  serious  attempt  to  harness  or 
censor  the  press,  and  the  response  of  the  American  people 
was  such,  and  so  emphatic,  that  no  one  has  ever  again 
thought  of  making  a  similar  attempt  to  violate  either  the 
letter  or  the  spirit  of  the  first  amendment  to  the  Constitu- 
tion, which  declared  that  "Congress  shall  make  no  law  re- 
specting an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof,  or  abridging  the  freedom  of  speech  or  of 
the  press." 

In  this  connection  I  might  make  reference  to  the  fact 
that  in  our  own  State  our  Legislature  last  year  passed  a  law 

39 


creating  a  Board  of  Censors  of  motion  pictures,  which  was 
vetoed  by  the  Governor;  not  on  the  ground  that  it  was  viola- 
tive  of  the  Federal  or  State  Constitution,  but  because  Fed- 
eral censorship  was  "coming  anyway"  and  State  censorship 
was  therefore  unnecessary.  And  this  despite  the  fact  that 
in  our  State  Constitution  there  will  be  found  a  provision,  in 
Section  3,  which  is  almost  similar  in  language  to  that  of  the 
Federal  Constitution,  the  provision  of  the  State  Constitution 
being  as  follows : 

"Section  3.  Every  citizen  may  freely  speak,  write  and  publish  his  sen- 
timents on  all  subjects,  being  responsible  for  the  abuse  of  that  right,  and  no 
law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the 
press." 

Now,  of  course,  when  the  State  Constitution  speaks  of 
giving  the  man  the  inalienable  right  to  make  and  publish 
his  sentiments  on  all  subjects,  it  was  never  intended  that  if 
a  new  invention  was  placed  upon  the  market  for  publication 
that  it  will  be  constitutional  to  prevent  him  from  using  it 
merely  because  it  was  new.  The  deaf  mute,  of  course,  can- 
not "speak  freely,"  but  if  he  is  educated  and  is  physically 
able  he  may  of  course  "write,"  but  the  State  Constitution 
also  gives  him  the  right  to  publish  his  sentiments  on  all 
subjects. 

How  can  it  be  said  that  it  will  be  constitutional  to  pre- 
vent him  from  publishing  on  the  screen,  whether  he  be  a 
mute  or  a  speaking  man,  that  which  he  desires  to  advertise 
or  portray  or  give  expression  to?  When,  mark  you,  our 
State  Constitution  says  that  "no  law  shall  be  passed  to  re- 
strain or  abridge  the  liberty  of  speech  or  of  the  press." 

It  is  evident,  of  course,  that  the  framers  of  the  Consti- 
tution never  intended  that  a  man  who  could  not  speak  freely 
should  be  deprived  of  a  means  of  expression,  mechanically, 
if  you  will,  for  that  would  be  treating  him  differently  from 
the  man  more  favored,  who  is  in  possession  of  all  his  physi- 
cal powers. 

One  of  the  most  vicious  features  of  censorship  is  that  it 
vests  a  discretion  in  the  censor  which,  like  discretionary 
powers  vested  in  public  officers,  is  subject  to  the  capricious 
and  whimsical  actions  of  the  officials.  Let  me  call  your  at- 

40 


tention  to  the  fact  that  if  the  producer  or  the  management, 
in  exhibiting  a  photo-play,  violated  a  penal  statute  and  was 
brought  to  court,  the  defendant  when  arraigned  in  court, 
would  be  entitled  to  all  the  benefits  and  safeguards  in  the 
proceedings  provided  for  in  a  criminal  proceeding;  first,  the 
presumption  of  innocence ;  second,  that  the  defendant  must  be 
proved  guilty  beyond  a  reasonable  doubt;  third,  the  consti- 
tutional right  of  a  jury  trial  except  in  cases  of  a  mis- 
demeanor. 

These  essentials  are,  of  course,  not  applicable  upon  a 
review  of  a  case  by  a  censor,  and  thus  there  is  substituted, 
in  place  of  well  grounded  principles  of  law,  the  taste  and 
judgment  of  the  censor.  To  illustrate  the  point  further: 
Assuming  that  we  had  Federal  censorship  in  this  country, 
in  addition  to  the  censorship  which  obtains  in  the  States 
under  their  statute  laws,  a  condition  of  this  kind  would  be 
conceivable.  The  censor  of  the  State  of  Pennsylvania 
passes  a  picture  as  being  fit  for  exhibition  in  his  State.  The 
moment  that  film  is  put  in  transit  for  the  State  of  Ohio,  and 
put  on  exhibition  within  a  mile  or  two  of  the  State  line,  the 
Federal  censor  steps  in  and  declares  that,  in  his  opinion,  the 
film  is  not  a  proper  one  to  be  shown. 

This  statement  emphasizes  the  point  that  I  desire  to 
make,  that  the  moment  the  Federal  or  State  authorities  un- 
dertake to  determine  in  advance  that  the  photo-play  cannot 
be  shown,  instead  of  allowing  it  to  be  shown  at  the  risk  of  a 
prosecution  for  violating  the  penal  law,  what  really  occurs 
is  that  individual  taste  and  judgment  on  the  part  of  the 
various  censors  in  the  various  States,  and  of  the  Federal 
censor,  is  submitted  in  place  of  principles  of  law,  which  have 
stood  as  bulwarks  through  centuries. 

I  have  called  attention  to  the  presumption  of  innocence ; 
of  the  necessity  for  proof  beyond  a  reasonable  doubt  and 
the  right  to  a  jury  trial. 

See  how  completely  the  scene  shifts  where  censorship 
obtains.  In  the  first  instance  the  producer  after  being  al- 
lowed to  show  the  film  is  brought  to  trial;  he  may  stand 
mute  with  the  burden  on  the  prosecution,  and  if  a  prima  facie 

41 


case  is  made  out,  all  the  defendant  need  do  is  to  create  a 
reasonable  doubt  as  to  his  guilt.  However,  when  the  censor 
attacks  him,  he  is  not  only  prevented  from  showing  the  film, 
but  when  he  comes  to  court  he  must  assume  the  burden,  after 
having  spent  perhaps  several  hundred,  or  thousands,  or  as 
much  as  a  million  dollars,  (as  some  of  the  recent  produc- 
tions have  cost)  of  establishing  that  he  has  a  good  and 
proper  film. 

Even  this  is  not  sufficient,  because,  even  though  he  may 
establish  this  he  must  go  a  step  further.  He  must  assume 
the  burden  of  satisfying  the  court  that  the  censor  has  acted 
arbitrarily,  whimsically  or  capriciously;  all  of  the  presump- 
tions, however,  being  in  favor  of  the  censor  having  per- 
formed his  public  duty  honestly,  faithfully  and  efficiently. 
And  the  defendant  meets  with  this  almost  unsurmountable 
obstacle,  that  the  court  will  unfavorably  hold,  as  is  demon- 
strated by  actual  cases  in  the  books,  that  the  court  will  not 
substitute  its  discretion  for  that  of  an  officer,  permitted 
under  the  law,  to  exercise  his  discretion.  The  court  may 
very  properly  turn  to  counsel  and  say  that  whatever  the 
opinion  of  the  court  may  be  upon  the  subject  it  cannot,  in 
the  absence  of  fraud  or  oppression,  assume  to  exercise  the 
duties  of  the  official  censor,  for  he  is  presumed  to  be  an  ex- 
pert upon  the  subject,  whereas  the  judge  is  not. 

INDIRECT  CENSORSHIP. 

(I)  In  our  own  City  of  New  York,  as  perhaps  in  other 
cities  in  our  country  and  various  places  throughout  the 
world,  there  has  grown  up  an  indirect  censorship.  The 
licensing  board  of  theatres  have  either  arbitrarily  or  under 
the  guise  of  law,  assumed  the  right  to  supervise  the  quality 
and  substance  of  a  picture  that  is  to  be  shown.  Thus,  Mr. 
George  H.  Bell,  License  Commissioner  of  the  City  of  New 
York,  although  under  the  statute  having  no  power  to  censor 
photo-plays  any  more  than  he  has  the  right  to  censor  dra- 
matic performances  by  living  actors,  compels  the  producers 
of  photo-plays  to  submit  to  him,  in  advance  of  the  exhibition 

42 


thereof,  (although  he  claims  it  is  pure  "suggestion,")  for 
his  decision  as  to  what  shall  or  what  shall  not  be  eliminated 
from  the  photo-play  as  shown  him. 

Of  course  he  has  a  method  of  enforcing  his  "suggestion" 
by  cancelling  the  license  of  the  theatre  at  which  a  photo- 
play is  shown  which  he  has  not  endorsed.  For  example, 
within  the  last  two  years  a  photo-play  was  shown  at  one  of 
the  largest  and  best  known  theatres  in  the  city,  dealing  with 
a  story  of  war  conditions  abroad.  The  License  Commis- 
sioner, to  whom  the  picture  was  shown  in  advance,  refused 
to  approve  it,  claiming  that  it  violated  the  President's  proc- 
lamation of  neutrality;  and  this  without  any  suggestion  on 
the  part  of  the  Federal  authorities.  Accordingly,  when  the 
picture  was  shown  at  the  theatre,  it  was  claimed  that  the 
License  Commissioner  had  threatened  to  revoke  the  license 
of  the  theatre  unless  the  photo-play  was  immediately  with- 
drawn. 

Whereupon  the  producer  of  the  photo-play  sought  re- 
lief in  the  Supreme  Court  of  our  city,  and  in  an  ably  writ- 
ten opinion  by  Mr.  Justice  Whittaker,*  he  enjoined  the 
License  Commissioner  from  interfering  with  the  photo-play, 
holding  that  it  was  not  within  his  power  to  exercise  this  in- 
direct form  of  censorship.  Despite  that  decision,  however, 
the  practice  of  this  indirect  censorship  still  continues. 

(II)  There  is  another  form  of  indirect  censorship  which 
is  voluntarily  submitted  to.  There  is  a  board,  known  as 
"The  National  Board  of  Review,"  (formerly  known  as 
National  Board  of  Censorship)  composed  of  educators, 
public  spirited  citizens,  clergymen,  publicists,  etc.  This  body 
receives  from  the  manufacturer,  in  advance  of  the  exhibi- 
tion, the  photo-play,  and  while  having  no  power  by  law  to 
censor  the  picture,  directs  and  suggests  eliminations,  or  in 
some  cases  refuses  to  pass  a  picture.  Frequently  you  have 
seen  upon  the  screen  the  designation  "Passed  by  the  Na- 
tional Board  of  Review,"  or  previously,  National  Board  of 
Censorship.  It  is  to  this  situation  that  that  designation  has 
reference. 


•See  Life  Photo  Company  v.   Bell,  90  Misc.,  469. 

43 


There  can  be  no  ground  for  Federal  Censorship  under 
the  police  power  of  the  Federal  Government,  for  it  is  ex- 
tremely doubtful  if  the  Federal  Government,  as  such,  has 
police  power.  The  attempt  to  evade  clear  provisions  of  the 
statutes  and  constitutions  of  the  States,  up  to  this  time,  has 
been  jealously  guarded,  and  whenever  the  question  has  been 
presented  as  to  the  exercise  of  police  power  in  the  Federal 
Government,  it  has  been  stoutly  resisted  by  the  State  govern- 
ments. 

TARIFF  ACT  CENSORSHIP  PROVISION. 

A  reference  to  censorship  is  also  found  in  the  Tariff 
Act.  In  the  Act  of  October  3,  1913,  Compiled  Statutes, 
1913,  Section  5291,  Being  Chapter  1638,  Statutes  114,  it 
is  thus  provided  in  Subsection  380,  of  Section  1,  of  the  said 
Tariff  Act  of  1913,  reference  to  which  will  be  found  in 
Webber  v.  Fried,  (355  Fed.  Rep.,  355,  at  page  356),  that 
a  duty  is  imposed  on  photographic  film  positives  imported 
for  use  in  connection  with  moving  pictures,  or  the  exhibition 
thereof,  with  the  provision  that  films  so  imported  may  be 
subjected  to  such  censorship  as  the  Secretary  of  the  Treas- 
ury may  impose,  but  up  to  this  time,  as  was  the  situation 
when  the  Webber  case  was  presented  in  the  Federal  Court, 
the  power  given  to  the  Secretary  of  the  Treasury  has  not 
been  exercised  by  him,  and  so  far  as  research  has  developed, 
there  are  no  censorship  regulations  by  the  Secretary  of  the 
Treasury.  This,  of  course,  would  have  reference  only  to 
the  importation  of  films,  which  may  or  may  not  be  covered 
by  the  constitutional  provisions. 

SUNDAY  LEGISLATION  AND  DECISIONS. 

A  statement  as  to  the  law  in  this  State,  regarding  the 
operation  of  a  motion  picture  on  Sunday,  is  not  easy. 

When  the  motion  picture  theatres  first  appeared  in  this 
State,  in  1907  and  1908,  there  was  considerable  agitation 
against  these  places  being  operated  on  Sunday.  The  dra- 
matic theatres  were  operated  under  what  is  called  "A  The- 
atrical License,"  issued  by  the  Police  Commissioner,  where- 

44 


as  the  motion  picture  theatres  were  operated  under  what  is 
known  as  "A  Common  Show  License,"  issued  through  the 
Mayor's  office. 

The  State  statute  prohibited  the  giving  of  Sunday  per- 
formances in  theatres,  of  the  kind  defined  in  the  statute. 
Of  course  when  this  law  was  passed,  motion  pictures  were 
unknown,  so  that  obviously  this  class  of  theatres  could  not 
come  within  the  statute  nor  the  charter  provision  which  fol- 
lowed the  statute.* 

The  only  other  section  of  the  Penal  Law  which  might 
be  applicable  is  that  pertaining  to  public  sports  and  public 
exhibitions  on  Sunday,  f 

There  is  nothing  in  the  Constitution  of  the  State  which 
prohibits  the  transaction  of  business  on  Sunday.  It  is  our 
Penal  Law  which  recognizes  Sunday  as  a  religious  and  a 
rest  day,  and  this  is  covered  by  Section  2,140  of  the  Penal 
Law,  formerly  Section  259  of  the  Penal  Code,  which  reads 
as  follows : 

"The  first  day  of  the  week  being,  by  general  consent,  set  apart  for  rest 
and  religious  uses,  the  law  prohibits  the  doing  on  that  day  of  certain  acts 
hereinafter  specifically  mentioned,  which  are  serious  interruptions  of  the 
repose  and  religious  liberty  of  the  community." 

Then  comes  the  sections  declaring  that  Sabbath  breaking 
is  a  violation  of  the  prohibition,  the  punishment  for  Sab- 
bath breaking,  and  finally,  a  definition  of  the  prohibited  acts 
on  the  Sabbath. 

Therefore,  it  is  to  be  observed,  that  only  those  things 
are  prohibited  which  are  specifically  legislated  against. 

Having  in  mind  the  fact  that  when  this  section  of  the 
Penal  Law  was  passed,  motion  pictures  were  unknown,  the 
general  language  employed  was  not  intended  to  cover  this 
class  of  entertainment,  so  the  attempt  has  at  times  been 
made  to  establish  whether  or  not  so  much  of  the  language 
as  was  employed,  was  sufficiently  specific  to  include  the 
motion  picture  theatre. 

The  attempt  to  close  the  motion  picture  theatres  on  Sun- 


*See  Section  2,152  of  the  Penal  Law,  formerly  Section  277  of  the  Penal  Code;  see 
also  Section  67  of  the  Greater  New  York  Charter,  as  amended  by  the  Ordinance  of 
the  Board  of  Aldermen,  passed  in  1908. 

tSection  2,145  of  the  Penal  Law,  formerly  Section  265  of  the  Penal  Code. 

45 


day,  resulted  in  the  decision  of  the  People  v.  Hemleb,  in 
the  Second  Department  of  the  Appellate  Division,*  in  which 
Mr.  Justice  Gaynor,  writing  for  the  court,  Judges  Jenks 
and  Woodward  concurring,  and  Judges  Hooker  and  Rich 
dissenting,  held  that  the  giving  of  a  motion  picture  show 
was  not  legislated  against  under  the  statute  and  was  there- 
fore not  illegal. 

This  was  substantially  the  view  of  Justice  Greenbaum, 
in  Eden  Musee  Company  v.  Bingham,  58  Misc.,  644,  and 
Mr.  Justice  Davis,  in  the  Supreme  Court,  First  Depart- 
ment, in  habeas  corpus  proceedings,  but  our  Appellate  Di- 
vision in  the  First  Department,  in  the  cases  of  the  Eden 
Musee  Company  v.  Bingham,  (125  App.  Div.,  780),  Sus- 
keind  v.  Bingham  (125  App.  Div.,  787),  and  Keith  v. 
Bingham  (125  App.  Div.,  791),  refused  to  pass  directly 
upon  the  question  when  the  matter  was  there  presented. 

Judge  Pound,  at  Buffalo,  held  that  it  was  illegal.f 
Judge  Foote,  in  the  Supreme  Court  at  Rochester  held  that 
the  giving  of  a  motion  picture  show  on  Sunday  was  illegal. 
Judge  Carr,  at  Brooklyn,  held  that  it  was  legal.! 

Recently  the  Appellate  Division  of  the  Third  Depart- 
ment, through  four  of  the  judges,  the  fifth  judge  dissenting, 
held  that  despite  previous  decisions,  the  giving  of  a  motion 
picture  show  on  Sunday  was  illegal. § 

In  Hamlin,  as  Commissioner,  versus  Bender,  decided  by 
the  Appellate  Division,  in  the  Fourth  Department,  May  24, 
1916,  there  is  a  per  curiam  opinion,  likewise  holding  it 
illegal,  the  Court  said:  "We  think  no  useful  purpose  will 
be  served  by  a  further  discussion  here  of  the  questions  so 
fully  considered  in  the  opinion  below  (92  Misc.,  16).  The 
authorities  are  in  conflict,  and  the  questions  can  only  be 
settled  by  the  court  of  last  resort.  We  agree  with  the  con- 


*See  People  v.  Hemleb,  137  App.  Div     356. 

t  See  United   Vaudeville  Company  v.   Zella,  58  Misc.,  16. 

jSee  People,  etc.,  v.  Finn,  57  Misc.,  page  659. 

§See  People  of  the  State  of  New  York  ex  rel.  Leroy  H.  Bender,  relator- 
respondent  v.  Joseph  Joyce  and  Tames  Keith,  Chief  of  Police;  opinion  by  Mr.  Justice 
Lyon,  concurred  in  by  Judges  Kellogg,  Howard  and  Cochrane,  Judge  Woodward  dis- 
senting. 

46 


elusions  reached  by  the  Trial  Court,  and  do  not  concur  in 
the  views  which  prevail  in  People  vs.  Hemleb,  127  A.  D., 

356" 

Therefore,  while  I  am  not  prepared  to  say  just  what  the 
law  in  our  State  is  upon  the  subject,  because  of  conflicting 
opinions,  nevertheless  it  would  appear  that  within  the  terri- 
torial limits  of  the  Greater  City  of  New  York  it  is  perfectly 
legal  to  give  a  motion  picture  show  on  Sunday;  but  when 
you  travel  forty  or  fifty  miles  north  of  the  city  line,  under 
the  recent  decision  of  the  Appellate  Division  of  the  Third 
Department,  it  is  illegal.  Traveling  forty  or  fifty  miles 
north  from  Albany,  it  is  legal,  but  traveling  the  same  dis- 
tance northwesterly  it  would  be  illegal. 

Of  course  our  Court  of  Appeals  has  not  yet  given  ex- 
pression of  its  views  upon  the  subject,  but  I  believe  that 
when  the  decision  is  given,  it  will  be  held  that  it  is  not  illegal 
to  give  a  motion  picture  show  on  Sunday. 

Before  the  pronouncement  of  the  Appellate  Division  of 
the  Third  Department,  an  atmosphere  had  been  created 
favorable  to  the  exhibition  of  motion  pictures  throughout 
the  country,  for  the  effect  of  the  earlier  decisions  in  this 
State,  in  1908  and  1909,  declaring  the  Sunday  exhibitions 
of  motion  pictures  to  be  legal,  was  felt  throughout  the  entire 
country.  Even  where  there  had  been  previous  ordinances, 
laws  and  decisions,  declaring  Sunday  exhibitions  illegal, 
these  either  became  dead  letters  or  were  rescinded,  so 
that  it  might  be  said  that  public  exhibitions  on  Sunday  are 
recognized  as  legal  as  a  result  of  these  earlier  decisions,  and 
this  as  a  result  of  what  Judge  Gaynor  said  was  the  highest 
kind  of  law — public  opinion. 

I  had  prided  myself  on  the  fact  that  in  this  State  I  was 
able  to  have  an  humble  part  in  shaping  the  law  so  that,  ex- 
cept in  a  few  of  the  rural  communities,  it  was  established 
that  giving  a  motion  picture  show  on  Sunday  was  legal. 
The  recent  decision  referred  to  disturbs  that  situation  and 
a  new  argument  becomes  necessary.  I  have  already  referred 
to  the  fact  that  before  the  advent  of  motion  picture 
theatres,  and  exhibitions  of  photo-plays  therein,  theatres  in 

47 


this  State  were  licensed  under  the  "Theatrical  Law"  and 
were  amenable  to  the  then  provisions  of  the  Penal  Code, 
Section  277,  now  Section  2,152.  For  those  who  are  inter- 
ested in  the  language  of  that  statute  (relating  to  prohibition 
against  Sunday  performances),  it  reads  in  part  as  follows: 

"The  performance  of  any  tragedy,  comedy,  opera,  ballet,  farce,  negro 
minstrelsy,  negro  or  other  dancing,  wrestling,  boxing  *  *  *  *  sparring  con- 
test, trial  of  strength,  or  any  part  or  parts  therein,  or  any  circus,  equestrian, 
or  dramatic  performance  or  exercise,  or  any  performance  or  exercise  of 
juggling,  acrobats,  club  performers  or  rope  dancers,  on  the  first  day  of  the 
week  is  prohibited." 

The  Section  has  specific  reference  to  a  performance  by 
living  persons,  or  in  other  words,  a  performance  of  the 
written  drama;  or  a  performance  of  the  stage. 

The  only  other  Section  applicable  therefore,  if  any,  is 
that  which  is  now  known  as  2145  of  the  Penal  Law,  former- 
ly 265  of  the  Penal  Code.  That  Section  reads  as  follows: 

"All  shooting,  hunting,  fishing,  playing,  horse-racing,  gaming,  or  other 
public  sports,  exercises  or  shows,  upon  the  first  day  of  the  week,  and  all 
noise  disturbing  the  peace  of  the  day  are  prohibited." 

This  statute  is  derived  from  one  of  the  earliest  laws  in 
the  history  of  the  State.  The  first  enactment  was  on  Febru- 
ary 23,  1788,  Chapter  42  of  the  Laws  of  that  year,  under 
a  statute  entitled  "An  Act  for  Suppressing  Immorality," 
and  it  prohibited  traveling,  servile  laboring,  or  working, 
shooting,  fishing,  playing,  hunting  or  frequenting  tippling 
houses,  or  any  unlawful  past-times  by  any  person  of  the 
State,  on  the  first  day  of  the  week,  called  Sunday.  It  is  in- 
teresting to  note  that  persons  under  the  age  of  fourteen 
years  were  exempted  from  the  provision  of  this  statute,  from 
which  it  might  be  inferred  that  it  was  perhaps  legal  for  a 
youngster  under  fourteen  to  frequent  a  tippling  house  or  en- 
gage in  unlawful  exercises  or  pastimes. 

The  penalty  for  violation  of  the  statute  was  that  the  of- 
fender forfeit  and  pay  to  the  use  of  the  city,  or  town,  the 
sum  of  six  shillings.  If  he  showed,  cried,  or  exposed  goods 
for  sale,  except  small  meat,  milk  and  fish  before  nine  o'clock 
in  the  morning,  he  would  forfeit  the  goods  so  shown,  cried 
or  exposed,  for  the  use  of  the  poor  of  the  city,  or  town, 
where  the  offense  was  committed. 

48 


It  was  further  provided  that  if  any  person  should  be 
found  shooting,  fishing,  playing,  hunting  or  going  to  or 
coming  from  any  market,  or  landing  with  cart,  wagon  or 
sled  on  Sunday,  it  should  be  lawful  for  the  constable,  or 
other  citizen,  to  stop  that  person  and  hold  him  until  the 
next  day  and  then  take  him  to  a  Justice  of  the  Peace,  to  be 
dealt  with  according  to  the  law;  but  there  was  a  proviso 
that  any  person  going  to  or  returning  from  church,  or  place 
of  worship,  within  the  distance  of  twenty  miles,  or  going  to 
call  a  physician,  surgeon  or  midwife,  or  carrying  mail  to  or 
from  a  post-office  or  going  express,  by  order  of  a  public 
officer,  should  not  be  considered  as  traveling  within  the 
meaning  of  the  Act.  From  which  it  may  be  inferred  that  a 
person  living  more  than  twenty  miles  from  a  church  was 
prevented  from  going  to  church  on  a  Sunday.  If  he  re- 
quired the  services  of  a  physician,  surgeon  or  midwife,  he 
could  not  go  after  one  if  his  habitation  was  more  than 
twenty  miles  from  where  a  physician,  surgeon  or  midwife 
resided. 

This  idea  was  probably  borrowed  from  the  old  Rab- 
binical law,  which  forbids  a  devout  Jew  from  traveling 
more  than  a  certain  distance  on  Sabbath,  which  is  consider- 
ably lessened  from  the  distance  which  he  may  travel  on  the 
Day  of  Atonement.  So,  after  all,  the  straphanger  in  the 
subway  should  be  happy  that  he  did  not  live  in  1788,  amen- 
able to  the  Sunday  laws. 

This  remained  the  law  of  our  State  until  1813,  without 
change  and  it  was  then  adopted  and  went  into  the  Revised 
Statutes  of  1813,  with  the  addition  of  the  word  "gaming." 
When  the  Penal  Code  was  adopted  in  1881,  there  was  sub- 
stituted for  the  words  "or  any  unlawful  exercises  or  past- 
times,"  the  phrase  "or  other  public  sports,  exercises  or 
shows."  In  1883,  by  Chapter  358  of  the  Laws  of  that 
^year,  the  word  "pastimes"  was  omitted,  so  the  doing  of 
"pastimes"  is  not  now  prohibited  on  Sunday. 

And  this  remained  the  law  until  the  Penal  Law  was 
adopted  as  part  of  the  Consolidated  Laws  of  this  State, 
which  became  a  law  March  12,  1909,  when  the  exact  phrase- 

49 


ology  was  incorporated.  The  language  of  the  statute  is 
important,  particularly  in  view  of  the  well-reasoned  opinion 
of  the  Appellate  Division  of  the  Second  Department.  It 
established  that  the  law,  as  drafted  under  a  familiar  rule  of 
interpretation,  ejusdem  generis,  that  the  Legislature  could 
not  have  contemplated  or  had  in  mind  motion  picture  shows, 
because  it.was  not  of  the  general  character  of  the  prohibited 
shows  or  public  sports  provided  for  in  the  statute. 

The  Appellate  Division  of  the  Third  Department,  how- 
ever, thus  disposes  of  the  question.  Says  the  Court: 
"There  is  but  a  single  question  to  be  decided  on  this  ap- 
peal, and  that  is,  what  did  the  Legislature  mean  when  it 
wrote  in  the  statute,  following  the  prohibition  against  shoot- 
ing, hunting,  fishing,  playing,  horse-racing,  gaming,  the 
words  'other  public  sports,  exercises  or  shows'  ?  Did  it  in- 
tend to  prohibit  exhibitions  in  the  nature  of  the  ordinary 
motion  picture  show?  It  would  seem  clear  that  the  answer 
to  that  question  must  be  in  the  affirmative." 

This  is  logic  that  I  am  unable  to  follow.  The  Court 
declares  the  intentions  of  the  Legislature  to  be  clear,  al- 
though a  number  of  judges  in  this  State,  of  practically  equal 
and  co-ordinate  jurisdiction,  exceeding  greatly  by  number 
the  four  judges  who  concurred  in  the  opinion  that  it  was 
"clear,"  take  an  entirely  different  view. 

Let  us  for  a  moment,  therefore,  analyze  the  situation. 
Now,  of  course,  under  the  rule  of  ejusdem  generis,  it  has 
almost  invariably  been  held  that  in  construing  the  scope  of 
such  general  words  as  "other  public  sports,  exercises  or 
shows,"  it  is  necessary  to  consider  the  specific  prohibitions 
that  precede  the  above  quoted  words  of  general  description; 
and  where  words  of  specific  prohibition  are  followed  by 
language  of  general  description,  the  latter  is  to  be  consid- 
ered as  being  co-ordinate  with  the  particular  or  specific  pro- 
hibition. So  that,  under  this  rule,  the  words  "or  other  pub- 
lic sports"  must  be  read  in  conjunction  with  the  specific  acts 
prohibited,  viz. :  shooting,  hunting,  fishing,  playing,  horse- 
racing,  gaming,  which,  by  the  language  of  the  statute,  were 
prohibited  only  in  public.  Thus  it  has  been  logically  argued 

50 


by  Mr.  Justice  Greenbaum,  in  the  Eden  Musee  case,  that  the 
intention  of  the  Legislature  was  to  prohibit  outdoor  exhi- 
bitions and  performances  which  were  attendant  with  noise 
and  offense  to  the  community,  and  therefore  within  the  inhi- 
bition of  being  serious  interruptions  of  the  repose  of  the  day, 
because  openly  and  publicly  conducted  outdoors. 

There  can  be  no  indication  that  the  Legislature  legis- 
lated against  motion  picture  shows,  for  I  have  already 
shown  that  the  language  of  the  statute  has  been  almost  simi- 
lar as  far  back  as  1788.  Coming  down  to  more  recent  times, 
when  the  Code  was  adopted  in  1881  by  the  Legislature,  it 
cannot  be  fairly  asserted  that  the  Legislature  intended  in 
that  year  to  prohibit  the  kind  of  performance  which  would 
first  become  known  commercially  twenty-six  years  in  the 
future  (1907).  The  Legislature  could  not  have  intended, 
in  the  language  implied,  that  motion  picture  shows  were  to 
be  prohibited,  for  however  astute  the  legislator  who  drew 
the  Act,  or  those  voting  in  favor  of  it,  their  imagination, 
powerful  as  it  might  have  been,  never  dreamed  of  motion 
pictures.  To  emphasize  the  point,  let  us  recall  the  well- 
known  rule :  that  you  may  not  read  into  a  penal  statute  by 
implication  that  which  the  penal  statute  does  not  in  express 
terms  prohibit.  Otherwise  a  man  would  be  subjecting  him- 
self to  a  violation  of  the  criminal  law  without  knowing  that 
he  was  violating  the  law  from  a  reading  of  the  statute.  It 
is  for  this  reason  that  even  where  statutes  are  under  review 
by  the  Court,  affecting  civil  rights,  that  the  Courts  may 
look  to  the  debates  of  the  legislatures,  or  in  the  Congress, 
for  the  purpose  of  determining  what  the  legislature  intended 
to  legislate  about  or  against. 

It  is  safe  to  assume  that  if  there  had  been  any  debate 
on  the  adoption  of  the  language  implied  in  the  statute,  no- 
where would  there  be  found  reference  to  the  possibility  of 
a  moving  picture  exhibition  on  Sunday.  You  could  not  say 
that  the  legislation  prohibiting  a  balloon  ascension  on  Sun- 
day, before  the  advent  of  aeroplanes,  contemplated  an  in- 
hibition of  a  commercial  trip  of  an  aeroplane  on  Sunday, 
many  years  after  the  enactment  of  the  statute. 

si 


Again:  When  our  Penal  Law  was  made  part  of  the 
Consolidated  Laws  of  our  State,  in  1909,  the  Legislature, 
with  full  knowledge  at  the  time  that  motion  picture  exhi- 
bitions were  then  openly  and  publicly  given  on  Sunday,  with 
knowledge  presumed  in  the  Legislature  of  the  decisions  of 
the  Courts  at  that  time,  accepted  the  statute  as  it  thereto- 
fore existed  under  the  Penal  Code.  The  Legislature  was 
aware  that  the  provisions  of  this  statute  were  held  by  the 
highest  court  to  be  non-violative  of  the  Sabbath  Law,  and 
it  is  presumed,  intended  to  leave  the  law  as  it  had  been  ad- 
judicated by  the  court. 

And  this  is  what  Judge  Pound,  now  of  our  Court  of 
Appeals,  twice  said  in  two  cases  before  him  at  Special  Term : 

"It  now  seems  to  be  established  that  the  Penal  Law  of  the  State  of  New 
York  does  not  prohibit  the  exhibition  of  moving  pictures  on  Sunday ;  and 
that  the  municipality  cannot,  independent  of  express  legislative  authority,  by 
ordinance  compel  and  enforce  Sunday  closing  of  moving  picture  shows  *  *  *; 
the  Legislature  alone  may  command  how  Sunday  may  be  kept."* 

"Seven  years  of  inaction  by  the  Legislature  since  this  decisionf  was 
rendered,  suggests  an  acceptance  of  the  ruling  by  a  majority  of  the  people, 
or  of  their  representatives.  Among  earthly  powers,  the  Legislature  alone 
may  command  how  Sunday  may  be  kept.  It  is  the  sole  judge  of  acts  to  be 
prohibited." 

It  is  very  well  for  those  who  seek  to  hold  that  the  statute 
is  broad  enough  to  prohibit  motion  picture  shows  on  Sun- 
day to  say  that  if  the  law,  as  found,  is  wrong,  relief  should 
be  had  with  the  Legislature  rather  than  the  courts,  but  this 
is  only  begging  the  question.  Since  we  are  dealing  with  the 
Penal  Law,  it  would  be  fairer  if  those  who  want  Sunday 
opening  prohibited  would  petition  the  Legislature  to  amend 
the  law  so  that  there  would  be  an  express  clause,  making 
moving  pictures  on  Sunday  illegal. 

In  nearly  every  state  of  the  Union,  where  the  question 
came  before  the  court  on  the  right  to  operate  a  motion  pic- 
ture show  on  Sunday,  it  has  been  held  that  it  was  not  a  vio- 
lation of  a  statute  similar  to  the  one  we  have  in  our  State. 
Thus,  in  the  State  of  Texas,  ex  parte  Lingsenfelter,  33 
Amer.  and  Eng.  Ann.  Cases,  763,  for  having  conducted  a 
motion  picture  theatre  in  April,  1911,  to  which  admission 


*Klinger  v.  Ryan,  153  Supp.,  937. 
tPeople  v.    Rand,  154   Supp.,  293. 


52 


was  charged,  the  defendant  was  convicted  in  the  lower 
court,  but  on  appeal  the  conviction  was  reversed,  the  court 
saying,  construing  the  term  Penal  Code,  as  follows : 

"The  exhibition  of  moving  pictures  on  Sunday,  and  the  charge  of  admis- 
sion fee  therefor,  not  being  prohibited  by  Article  199  of  the  Penal  Code,  or 
any  other  Article  of  the  Penal  Code  of  the  State  of  Texas,  the  conviction  of 
the  applicant  in  the  Corporation  Court  is  without  authority  and  unlawful." 

Article  199  of  the  Penal  Code  of  Texas,  referred  to  in 
the  opinion,  reads  as  follows : 

"Article  199.  Any  proprietor  of  any  place  of  public  amusement,  or  the 
agent  or  employe  of  any  such  person,  who  shall  permit  his  place  of  public 
amusement  to  be  open  for  the  purpose  of  public  amusement  on  Sunday,  shall 
be  fined  not  less  than  $20,  nor  more  than  $50.  The  term  "place  of  amuse- 
ment" shall  be  construed  to  mean  circuses,  theatres,  variety  theatres  and  such 
other  amusements  as  are  exhibited  and  for  which  an  admission  fee  is 
charged." 

This  statute  is  even  broader  than  our  own,  but  the  Court, 
in  applying  the  rule  of  ejusdem  generis,  said : 

"What  are  we  to  understand  by  the  general  term  'and  such  other  amuse- 
ments as  are  exhibited  ****'?  Clearly,  we  think,  amusements  of  a  like 
or  similar  character.  This  seems  to  have  been  the  construction  given  to  sim- 
ilar statutes  by  many  courts." 

In  the  State  of  Idaho,  under  a  statute  almost  identical 
with  ours,  it  was  held  not  to  be  a  violation  of  the  law  to 
have  a  motion  picture  exhibition  on  Sunday.*  The  statute 
of  that  State  reads  as  follows: 

"It  shall  be  unlawful  for  any  person,  or  persons,  to  keep  open  on  Sun- 
day, any  theatre,  playhouse,  dance-house,  race-track,  merry-go-round,  circus, 
or  show,  concert,  saloon,  billiard  or  pool-room,  bowling  alley,  variety  hall  or 
any  such  place  of  public  amusement." 

In  the  State  of  Montana,  under  a  similar  statute  to  ours,, 
in  Section  8,369  of  the  Revised  Codes,  it  was  held  that  a 
moving  picture  exhibition  on  Sunday  was  not  illegal.f  The 
defendant  was  convicted  in  a  court  for  violation  of  the 
statute,  in  that  he  exhibited  motion  pictures  accompanied 
by  piano  selections  and  vocal  music.  On  appeal  the  Court 
said: 

"The  operation  of  a  motion  picture  show  on  Sunday,  in  which  the  picture 
shows  were  of  clean  and  moral  character,  were  approved  by  a  general  board 
of  censors  located  in  another  State,  and  were  accompanied  by  piano  selec- 
tions and  vocal  music,  is  not  violative  of  the  Revised  Code,  Section  8,369,. 


•See  in  re  Hull,  18  Idaho,  475. 

tSee  State  v.  Penny,  42  Montana,  118. 


S3 


making  every  person  who  on  Sunday,  the  first  day  of  the  week,  keeps  open 
or  maintains  or  aids  in  opening  or  maintaining  any  theatre,  playhouse,  dance- 
house,  race-track,  gambling-house,  concert  saloon,  or  variety  hall,  guilty  of  a 
misdemeanor." 

That  statute  reads  as  follows : 

"Every  person  who,  on  Sunday,  the  first  day  of  the  week,  keeps  open  or 
maintains  or  aids  in  opening  or  maintaining  any  theatre,  playhouse,  dance- 
house,  race-track,  gambling-house,  concert  saloon  or  variety  hall,  is  guilty 
of  a  misdemeanor." 

It  was  similarly  held,  under  the  statute  of  the  State  of 
Mississippi,  which  reads  as  follows : 

"Section  1,368.  If  any  person  shall  engage  in,  show  forth,  exhibit,  act, 
represent,  perform,  or  cause  to  be  shown  forth,  acted,  represented,  or  per- 
formed, any  interludes,  farces,  or  plays  of  any  kind,  or  any  games,  tricks, 
ball-playing  of  any  kind,  juggling,  sleight  of  hand,  or  feats  of  dexterity, 
agility  of  body,  or  any  bear  baiting  or  any  bull  fighting,  horse  racing  or  cock 
fighting,  or  any  such  like  show,  or  exhibit  whatsoever  on  Sunday,  every 
person  so  offending  shall  be  fined  not  more  than  $50." 

Adjudicated  cases  in  Kansas  and  Missouri,  under  simi- 
lar statutes,  declared  it  not  a  violation  of  the  law  to  give  a 
motion  picture  show  on  Sunday.  In  Kansas,  construing 
their  statute,  the  court  held  in  State  v.  Prather,  79  Kansas, 
513,  that  playing  baseball  on  Sunday  would  not  violate  the 
law.  The  statute  in  that  State  reads  as  follows : 

"Every  person  who  shall  be  convicted  of  horse-racing,  cock-fighting,  or 
playing  at  cards,  or  games  of  any  kind,  on  the  first  day  of  the  week,  com- 
monly called  Sunday,  shall  be  deemed  guilty  of  a  misdemeanor  and  fined 
not  exceeding  fifty  dollars." 

In  Misosuri  it  was  similarly  held,  regarding  a  game  of 
baseball,  that  it  was  not  a  violation  of  their  statute  (ex  parte 
Joseph  Neet,  157  Missouri,  527).  There  the  Court  said, 
construing  Section  2,242  of  the  Revised  Statutes  of  Mis- 
souri : 

"That  there  was  no  law  of  the  State  which  prevents  the  playing  of 
baseball  on  Sunday." 

The  Missouri  statute  reads  as  follows: 

"Every  person  who  shall  be  convicted  of  horse-racing,  cock-fighting,  or 
playing  cards  or  games  of  any  kind,  on  the  first  day  of  the  week,  commonly 
called  Sunday,  shall  be  deemed  guilty  of  a  misdemeanor  and  fined  not  ex- 
ceeding $50." 

In  fact,  in  a  number  of  the  western  and  southern  States, 
there  is  no  statutory  inhibition  against  Sunday  theatricals 
or  Sunday  moving  picture  exhibitions.  Thus,  in  Arizona, 
the  acts  forbidden  on  Sunday  do  not  include  theatrical 
amusements,  sports  or  exhibitions  of  any  kind.  All  that  is 

54 


prohibited  on  Sunday  is  the  opening  of  public  offices  and 
the  exercise  of  judicial  function,  and  their  act  becomes  ef- 
fective as  late  as  September,  1901. 

Under  the  statutes  of  Arkansas,  there  is  likewise  no 
prohibition.  What  is  there  forbidden  is  horse-racing,  cock- 
fighting  and  gambling. 

In  Alabama  all  that  is  forbidden  on  Sunday  is  the  play- 
ing of  base-ball.  There  seems  to  be  no  prohibition  against 
any  other  form  of  amusement. 

In  Florida  amusement  shows,  or  exhibitions,  are  not 
specifically  prohibited  by  the  statute. 

In  the  neighboring  State  of  Connecticut,  their  statute 
legislates  against  concerts  of  music,  dancing,  or  other  public 
diversions  on  Sunday,  but  makes  no  specific  reference  to 
theatres,  theatrical  exhibitions  or  moving  picture  shows. 

These  references  to  the  state  statutes  and  decisions  may 
be  multiplied,  but  enough  has  been  given  to  indicate  the 
general  tendency. 

INJUNCTIONS  DETERMINED  THE  LAW. 

It  is  interesting  to  note  that  most  of  the  litigation  affect- 
ing this  industry  was  determined  by  injunction  proceedings, 
and  it  was  through  the  agency  of  the  special  writ  of  injunc- 
tion (which  is  rarely  granted  excepting  in  clearly  defined 
cases)  that  relief  was  afforded  to  the  person,  or  persons,  in 
the  industry  when  recourse  to  the  courts  was  necessary. 

This  is  not  only  interesting  but  is  a  commentary  on  the 
haste  with  which  things  are  done  in  our  day  and  age,  par- 
ticularly when  affecting  a  new  industry.  It  is  obvious  that 
the  mere  fact  that  there  were  injunction  proceedings,  shows 
that  exigencies  arose  which  required  the  immediate  inter- 
ference of  the  court  by  this  extraordinary  and  seldom  re- 
sorted to  process,  in  order  to  conserve  the  rights  of  the  in- 
dustry or  to  prevent  threatened  ruin  and  destruction. 

This  also  presents  another  aspect,  that  since  these  mat- 
ters were  largely  disposed  of  by  preliminary  hearing,  with- 
out the  formal  taking  of  testimony  and  the  right  to  cross- 

55 


examine,  the  principles  and  doctrines  have  not  been  care- 
fully evolved,  and  certainly  errors  must  have  crept  in.  To 
illustrate:  In  the  early  stages  of  the  industry,  the  Sunday 
aspect  arose,  usually  through  attempts  of  the  police  to  sum- 
marily close  motion  picture  theatres  on  Sunday,  so  that  it 
was  necessary  to  rush  to  court  for  relief,  with  the  conse- 
quent necessity  for  speedy  decision.  Since  a  speedy  decision 
was  required,  the  court  necessarily  was  obliged  to  limit  the 
argument  and  papers  such  as  the  exigency  of  the  case  war- 
ranted. 

Another  illustration:  In  the  early  stages  of  the  indus- 
try, in  our  own  City  of  New  York,  the  then  Mayor,  Mc- 
Clellan,  on  the  evening  preceding  Christmas,  issued  an  order 
for  the  wholesale  revocation  of  licenses  of  every  moving 
picture  theatre  in  New  York,  and  directing  that  they  be 
immediately  closed,  with  instructions  to  the  Police  Commis- 
sioner to  enforce  this  order.  This  was  a  big  question  and 
involved  the  decision  as  to  whether  the  Mayor  of  the  city 
had  either  the  right  or  the  privilege,  by  a  stroke  of  the  pen, 
to  practically  cripple  the  industry,  not  only  affecting  the 
theatres  and  the  many  thousands  of  employes  engaged  there- 
in, but  the  producers  of  the  pictures,  whose  market  was 
found  in  the  theatres  through  the  exhibition  of  the  films; 
also  the  thousands  who  were  engaged  in  the  manufacture  of 
the  films,  as  well  as  those  manufacturing  the  material  for 
the  making  of  the  pictures,  the  cameras  and  the  projecting 
machines. 

Of  course  there  was  necessity  for  haste.  Here  again 
the  extraordinary  writ  of  injunction  was  resorted  to,  and 
Mr.  Justice  Blackmar's  decision  (Fox  v.  McClellan  supra) 
was  that  the  action  of  the  Mayor  was  capricious,  whimsical 
and  without  legal  grounds,  his  action  rescinded  and  the 
Mayor  enjoined. 

Another  illustration:  I  have  referred  to  the  acts  of  the 
so-called  "Motion  Picture  Trust"  and  their  claim  of  the 
right  of  refusing  to  deal  in  their  commodity  with  the  rental 
companies.  Here  again  the  question  was  presented  by  in- 
junction, for  when  there  was  refusal  to  deliver  their  pro- 

56 


ductions  to  the  Greater  New  York  Film  Rental  Company, 
instantly  the  necessity  for  action  arose.  There  was  a  rush 
to  the  court  to  enjoin  the  manufacturers  from  immediately 
carrying  out  their  threat,  as  a  result  of  which  there  stands 
upon  the  books  to-day  a  reversal  by  the  Circuit  Court  of 
Appeals  of  the  decision  of  Judge  Learned  Hand,  to  which 
I  have  referred,  and  which  I  contend  is  wrong  in  principle, 
in  a  proceeding  where  no  oral  testimony  was  taken,  no  cross- 
examination  of  witnesses,  the  decision  being  based  merely 
upon  affidavits  or  papers  presented  upon  the  application  for 
preliminary  injunction. 

The  copyright,  unfair  competition  and  infringement  as- 
pect presents  the  same  anomoly.  Usually  these  matters  are 
disposed  of  on  informal  hearing.  A  picture  is  advertised 
for  exhibition  without  the  consent  of  the  person  holding  the 
copyright,  who  rushes  into  court  for  an  application  of  in- 
junction to  restrain  the  exhibitor  from  using  a  pirated  or 
simulated  version  of  his  story.  There  is  no  time  for  a  de- 
liberate hearing,  and  the  questions  involved  in  the  case  are 
usually  disposed  of  by  the  judge  after  almost  ex  parte  read- 
ing of  the  complainants'  and  defendants'  papers. 

Obviously,  the  photo-play,  in  States  where  censorship 
has  been  established,  is  received  by  the  censor  shortly  in  ad- 
vance of  the  advertised  day  of  its  production  or  exhibition. 
The  decision  of  the  censor  may  be  speedy  or  delayed  as  the 
case  may  be.  Usually  it  comes  within  a  few  hours  before  the 
advertised  release  date.  If  the  decision  is  adverse,  the  pro- 
ducers are  necessarily  required  to  hasten  into  court  for  re- 
lief by  injunction.  Since  thousands  of  theatres  throughout 
the  country  are  waiting  for  the  delivery  of  the  film,  and 
their  audiences  by  advertisements  are  expecting  to  see  it 
shown,  there  must  be  speedy  action  and  speedy  decision. 
Hence,  the  extraordinary  writ  of  injunction  is  resorted  to, 
with  the  same  necessity  for  speedy  decision  and  the  same 
lack  of  opportunity  for  carefully  written  opinions,  as  I  have 
previously  pointed  out. 

The  question  may  be  asked  as  to  what  is  the  remedy  for 
this.  My  answer  is  that  if  we  will  get  away  from  the  idea, 

57 


expressed  in  the  opening  portion  of  this  lecture,  that  the 
legal  Lilliputians  shall  not  tie  with  the  red-tape  of  legisla- 
tion an  industry,  particularly  one  in  its  formative  period 
without  deliberate  hearings  and  action,  in  a  large  measure 
these  results  will  be  avoided. 

In  the  first  place,  public  officials  who  intend  to  take  action 
with  respect  to  the  Sunday  proposition,  should  not  do  so 
except  by  first  making  application  to  the  court  with  the  right 
of  hearing  of  the  persons  to  be  affected.  In  this  way  the 
opportunity  is  afforded  to  all  those  engaged  in  the  industry 
to  prepare  in  advance  for  an  adverse  decision  and  to  regu- 
late their  conduct  accordingly. 

In  the  matter  of  copyright,  unfair  competition  and  in- 
fringement, the  law  may  be  so  moulded  that  the  person,  or 
persons,  intending  to  release  or  exhibit  a  photo-play,  should 
give  notice  by  advertising,  a  sufficient  time  in  advance  of 
his  or  their  intention  so  to  do ;  the  statute  further  providing 
that  within  a  certain  stipulated  number  of  days,  application 
may  be  made  to  the  court,  by  the  person  injured,  for  such 
relief  as  the  situation  requires;  and  further  providing  that 
no  preliminary  injunction  shall  be  issued  unless  the  applica- 
tion shall  be  made  within  the  stipulated  time,  which  should 
be  such  time  in  advance  of  the  first  exhibition  as  would  give 
the  court  opportunity  for  careful  inquiry  and  decision. 

The  other  abuses,  if  they  be  such  of  which  I  complain, 
could  similarly  be  regulated,  either  by  statute  or  rules  of 
court. 

Naturally,  such  a  review  as  we  have  made 
to-night  must  be  cursory  and  even  here  and  there  disjointed. 
At  the  same  time  I  hope  that  enough  has  been  said  to  encour- 
age research  and  study  of  this  most  fascinating  subject. 


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